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Schweig v. Schweig

107 N.Y.S. 904 Court N.Y. App. Div. Decision date 1907-12-20 English

Delivered by CLARKE, J.

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SCHWEIG v. SCHWEIG.
(Supreme Court, Appellate Division, First Department.
December 20, 1907.)

Headnote

Divobce—Alimony—Evidence.
Where, in an action for divorce for adultery, plaintiff’s complaint alleged the facts on information and belief, which defendant denied under oath, and plaintiff’s application for alimony and counsel fees pendente lite, based on a petition reciting that she would be able to substantiate all the allegations of the complaint by proof on trial, etc., was answered by defendant, absolutely denying the charges of adultery made in the complaint, which was not supported by any proofs showing the sources of plaintiff’s information nor the grounds of her belief, her application should have been denied, with leave to renew on further proofs.
Appeal, from Special Term.
Action by Anna Schweig against Arthur C. Schweig. From an order allowing alimony and counsel fees pendente lite in an action of absolute divorce, defendant appeals. Reversed, and motion denied.
Argued before PATTERSON, P. J., and McEAUGHLIN, IN-GRAHAM, CLARKE, and HOUGHTON, JJ.
P. A. Hatting (Abraham Harris, of counsel), for appellant.

This is an appeal from an order of the Special Term awarding to the plaintiff alimony pendente lite at the rate of $10 per week and a counsel fee of $75. The order is based upon a petition of the plaintiff in which it is alleged:

“That she will be able to substantiate all the allegations of the complaint by proof at the trial, and that she has a good cause of action thereon, as she is advised by her counselor, * * * and that she verily believes.”

The complaint alleges:

“On information and belief that at divers times and at various- places in the city of New York, between the, 1st day of September, 1906, and the 1st day of January, 1907, the defendant has committed adultery with a woman whose name is at present unknown to the plaintiff.”

This allegation of the complaint is denied under oath by the defendant.

This order should not have been granted, under the express authority of Downing v. Downing, 23 App. Div. 559 , 48 N. Y. Supp. 727 , where this court said:

“All the allegations constituting the ground of divorce in the complaint are upon information and belief; and this motion was based upon a petition and the complaint. The defendant, answering the motion, filed an affidavit denying absolutely the charges of adultery contained in the complaint, and no proofs whatever tending to show the sources of information or the grounds of belief of the plaintiff were presented to the court. We think, under these cir
p. 905
cumstances, the plaintiff’s motion should have been denied. In aid of her application she should have exhibited to the court some evidence tending to show that there was a reasonable ground for her commencing, the action and that there was a reasonable probability that she might succeed in establishing her charges.” Wood v. Wood, 61 App. Div. 96 , 70 N. Y. Supp. 72 .

Therefore this order should be reversed, and the motion denied, without costs, with leave to renew upon further proofs. All concur.

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