McCracken v. McCracken — 213 A.D. 768

Majority

p. 768

Marie McCracken, Appellant, v. Robert A. McCracken, Respondent.

First Department,

June 12, 1925.

Headnote

Husband and wife — separation — application for additional counsel fees and sum to cover disbursements on appeal— affidavit shows plaintiff’s appeal is meritorious — application granted.

An application by the plaintiff in a separation action for additional counsel fees and money to cover essential disbursements on an appeal from a judgment dismissing her complaint should have been granted, since the affidavit filed by her shows that the appeal is in some respects meritorious and that she will probably be successful.

Appeal by the plaintiff, Marie McCracken, 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 20th day of April, 1925, denying her motion for additional counsel fees as well as a sum to cover disbursements on her appeal from a judgment dismissing the complaint.

p. 769

William Matthews, for the appellant.

Philip C. Samuels [Max Lazarus with him on the brief], for the respondent.

The plaintiff commenced an action for a separation on the ground of abandonment and non-support. The answer was confined to denials.

• After the trial the complaint was dismissed upon the merits. Decision and judgment followed in due course. A notice of appeal from such disposition of the action was served on March 27, 1925, and the appeal is now pending undetermined.

On the motion plaintiff filed an affidavit verified by herself in which she set forth at length her reasons for the appeal. In thus stating the grounds she set forth that the decision found, both as a conclusion of fact and as a conclusion of law, that plaintiff had abandoned defendant, though he sought no affirmative relief. Other assignments of error are also set forth.

We believe that her papers indicated that the appeal is, in at least some respects, meritorious and that, to such extent, it is shown that the appeal can probably be successfully prosecuted.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted so far as to order that one hundred dollars be paid to plaintiff for counsel fees and essential disbursements on the appeal, payment to be made after the case has been served and filed.

Clarke, P. J., Dowling, Finch and McAvoy, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion granted to the extent indicated in opinion.