Colt v. Colt — 261 A.D. 787

Majority

p. 787

Beth Tate Colt, Respondent, Appellant, v. Russell G. Colt, Appellant, Respondent.

First Department,

May 2, 1941.

Herbert Goldmark of counsel [Charles Franklin, attorney], for the respondent-appellant.

Louis F. Huttenlocher, for the appellant-respondent.

In this action for a separation, plaintiff claims to be the common-law wife of the defendant. Defendant denies existence of any marriage. Special Term granted plaintiff’s motion for temporary alimony and counsel fee only to the extent of designating an official referee “ to take proof and report to the court with his opinion, with all convenient speed, as to whether the plaintiff possesses a reasonable probability of success in this action. * * *,” and allowing plaintiff $100 a week temporary alimony until the termination of the reference, and $350 counsel fees.

We think that this procedure was improper. Unless Special Term was satisfied that a reasonable probability of success was shown, no award should have been made. A reference to determine this issue was improper,

Concurring in part and dissenting in part

p. 788

We think that upon the papers plaintiff failed to show reasonable probability of success.

The order should be reversed in its entirety, without costs, and the plaintiff’s motion denied.

Martin, P. J., and Townley, J., concur; O’Malley and Dore, JJ., dissent in part, with memorandum.

(dissenting in part). We concur in the view that the procedure adopted at Special Term was improper. We disagree, however, with the holding that plaintiff has failed to show reasonable probability of success. We, therefore, vote to grant the motion to the extent of allowing $100 a week alimony and a counsel fee of $1,000.

Order in all respects revérsed, without costs, and plaintiff’s motion denied.