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Michelson v. Michelson

136 N.Y.S. 533 Court N.Y. Sup. Ct. Decision date 1912-06-05 English

Delivered by GIEGERICH, J.

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p. 533
MICHELSON v. MICHELSON.
(Supreme Court, Special Term, New York County.
June 5, 1912.)

Headnote

Divobce (§ 214*)—Alimony and Counsel Fees—Allowance—Sufficiency of Showing.
A wife’s motion, in her action for divorce, for alimony and counsel fee, though not appeared against, will not be granted, she alone having made affidavit to defendant’s adultery; her testimony not being competent to prove it, and she, in order to obtain either alimony or counsel fee, being required to make a showing of fair prospect of success in the action.
[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 626-631; Dec. Dig. § 214.*]
♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
Action by one Michelson against one Michelson. Heard on motion for alimony and counsel fee.
Denied.
Geo. Francis, O’Neill, of New York City, for plaintiff.
Walter J. Egan, of New York City, for" defendant

Although the defendant has not appeared in opposition to the motion for alimony and counsel fee, I am compelled by reason of the insufficiency of the moving affidavit to deny the same. The action is for a divorce,- and the plaintiff alone has made an affidavit as to the defendant’s adultery. Her evidence, however, is not competent to prove the adultery. Moriarty v. Moriarty, 10 N. Y. Supp. 228 ; Wood v. Wood, 61 App. Div. 96 , 70 N. Y. Supp. 72 . The wife, in order to obtain either alimony or counsel fee, must present a case to the court showing that she has a fair prospect of success in the action. Collins v. Collins, 71 N. Y. 269 , 275; Moriarty v. Moriarty, supra. Since this has not been shown, the motion must be denied, without costs, with leave to renew on sufficient papers.

Order signed.

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