Capes v. Capes — 173 A.D. 142

Majority

p. 142

Angia P. Capes, Respondent, v. William P. Capes, Appellant.

First Department,

June 2, 1916.

Headnote

Husband and wife—temporary alimony—failure of moving papers to show probability of plaintiff’s success — complaint stating plaintiff’s knowledge of defendant’s adultery.

A motion for alimony and counsel fees pending the trial of an action for absolute divorce should not be granted where the only proof of the defendant’s adultery showing the plaintiff’s probability of success is an allegation of the complaint made on the plaintiff’s personal knowledge. Even if she possesses personal knowledge of said offense she could not testify to it on the trial.

Appeal by the defendant, William P. Capes, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of April, 1916, granting plaintiff’s motion for alimony and counsel fees pendente lite.

Robert W. Crawford, for the appellant.

John A. Bolles, for the respondent.

The plaintiff, in support of her motion for alimony and counsel fees, presents nothing from which the court can find sufficient reason to believe that there is a fair probability that on the trial of the issues the charge of adultery against defendant will be sustained. (Merrell v. Merrell, 168 App. Div. 896 .) There is nothing except the allegation in the complaint that defendant did commit the act. It is true that this is alleged as of plaintiff’s own knowledge, but, even if she has personal knowledge of the fact, which is improbable, she coixld not testify to it on the trial. (See Code Civ. Proc. § 831.) If, therefore, she has no other evidence than that which she presents on this motion she must inevitably fail in her action.

p. 143

The order should be reversed and motion denied, without prejudice to a renewal of the motion upon proper papers.

Clarke, P. J., Dowling, Smith and Page, JJ., concurred.

Order reversed and motion denied, without prejudice to renewal of motion upon proper papers.