Gray v. Gray

Headnote

Divorce—Alimony Pendente Lite.

In an action for divorce on the ground of adultery, plaintiff will he allowed alimony pendente lite where there is some competent evidence of defendant’s guilt.

Appeal from special term, Kings county.

Action by Elizabeth Gray against James C. Gray for divorce. From an order directing defendant to pay $250 for counsel fees, and $100~ per month for alimony pendente lite, defendant appeals. Affirmed.

The opinion of Mr. Justice CULLEN at special term is as follows:

While it may be that under section 1757, Code Civ. Proc., a party to an action for divorce can demand, as a matter of right, a jury trial on the issue of adultery only, still, under section 971, it is within the power of the court to direct that any issues be so tried. I shall therefore follow the ordinary practice, and direct that all the issues relating to that cause of action, whether raised by plaintiff or defendant, be submitted to the jury. The allegations relating to plaintiff’s desertion are immaterial on that cause of action, and their submission would only embarrass the trial of the other issues. The effect of the residence of the parties it is not necessary to consider or pass upon now. That can properly be left to any motion made on the verdict. As to the right of the plaintiff to alimony and counsel fees, this case is to be distinguished from the case of Langley v. Langley (not reported). Here there is some competent evidence of the defendant’s guilt, to wit, his admission that he had no defense to the suit. I am of the opinion that plain

tiff shows she is without means of her own for support or maintenance^ of the suit. The fact that her mother will undoubtedly prevent her suffering does not relieve defendant from his liability, to be assumed by one upon whom it does not rest in law. The issues, as proposed, will stand. Alimony, $100 a month; counsel fee, $250,—allowed plaintiff.