Capes v. Capes — 159 N.Y.S. 367

Majority

p. 367

(173 App. Div. 142)

CAPES v. CAPES.

(Supreme Court, Appellate Division, First Department.

June 2, 1916.)

Headnote

1. Divorce <8=o214(3)—Alimony and Counsel Fees—Evidence.

An order for the payment of alimony and counsel fees would be reversed, where plaintiff in support of her motion therefor presented nothing from which the court could find sufficient reason to believe that there was a fair probability that on the trial of the issues her charge of defendant’s adultery1 would be sustained.

[Ed. Note.—For other cases, see Divorce, Cent. Dig. § 630; Dec. Dig. <8=3211(3).]

2. Witnesses <@=300(3)—Competency—Husband and Wife.

Even though the defendant’s commission of adultery was alleged as of the plaintiff’s own knowledge, she could not testify to it on the trial.

[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 171, 172; Dec. Dig. <8=360(3).]

©=3For other cases see same topic & KEY-NUMBEIt in all Key-Numbered Digests & Indexes

p. 368

Appeal from Special Term, New York County.

Action for divorce by Angia P. Capes against William P. Capes. From a judgment granting plaintiff’s motion for alimony and counsel fees pendente lite, defendant appeals. Order reversed, and motion denied, without prejudice to a renewal of the motion upon proper papers.

Argued before CLARKE, P. J., and SCOTT, DOWLING, SMITH, and PAGE, JJ.

Robert W. Crawford, of New York City, for appellant.

John A. Bolles, of New York City, for respondent.

[1, 2] The plaintiff, in support of her motion for alimony and counsel fees, presents nothing from which the court can find sufficient reason to believe that there is a fair probability that on the trial of the issues the charge of adultery against defendant will be sustained. Merrell v. Merrell, 168 App. Div. 896 , 152 N. Y. Supp. 970 . There is nothing except the allegation in the complaint that defendant did commit the act. It is true that this is alleged as of plaintiff’s own knowledge; but, even if she has personal knowledge of the fact, which is improbable, she could not testify to it on the trial. If, therefore, she has no other evidence than that which she presents on this motion, she must inevitably fail in her action.

Order reversed, and motion denied, without prejudice to a renewal of the motion upon proper papers. Order filed. All concur.