Llamosas v. Llamosas

Headnote

The allowance for alimony and expenses in an action for divorce is within the discretion of the court of original jurisdiction, and unless so gross and excessive as to show an abuse of judicial discretion, the order granting it is not reviewable in this court.

Proof of the amount of labor or the value of services of counsel is not necessary to sustain an allowance for counsel fees; the court may determine from its own experience and from the facts and circumstances of the case, as disclosed by the papers, what is a reasonable fee.

This was an appeal from an order of General Term, affirming an order of Special Term making an allowance for alimony and for counsel fees in an action for divorce a mansa et thoro.

The allowance was $500 for counsel fee and thirty-five dollars per week alimony. The complaint alleged marriage and that the parties were inhabitants of this State, and had minor children. These allegations were admitted by the answer. The complaint alleged cruel treatment. This was denied. Held, that the facts alleged gave the court jurisdiction to grant alimony and expenses. (Griffin, v. Griffin, 47 N. Y., 134 ; Brinkley v. Brinkley, 50 id., 184 .) That the amount of the allowance was discretionary, and unless so gross and excessive as to show an abuse of judicial discretion, was not reviewable, and that the allowance here could not be said under the circumstances to be gross or excessive. Upon the motion for alimony and expenses it was referred to a referee to take the testimony and report. No evidence was given before him as to the amount of labor performed or to be performed or the value of services of counsel. The defendant objected that the amount was arbitrarily fixed. Held, that the amount was fixed not by the referee, but the court, and needed no testimony to determine it; that the court could determine from its own experience and from the facts and circumstances of the case, as they appeared to it from the pleadings and other papers and proceedings, what was a reasonable fee.