Downing v. Downing — 48 N.Y.S. 727

Majority

p. 727

DOWNING v. DOWNING.

(Supreme Court, Appellate Division, First Department.

December 31, 1897.)

Headnote

Div rates—Tempobary Alimony.

To support a plaintiff’s motion for alimony and counsel fees pending an action for absolute divorce, it is essential to furnish some evidence tending to show a reasonable ground for commencing the action, and reasonable probability of success in establishing the matters charged. Mere allegations based on information and belief, with nothing to show the source of information or grounds of belief, will not suffice.

Appeal from special term.

Action by Maud Downing against John J. Downing. From an order directing payment of alimony and counsel fees, defendant appeals.

Reversed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O’BRIEN, and INGRAHAM, JJ.

G. A. Moses, for appellant.

G. A. Burgess, for respondent.

This action was brought to procure an absolute divorce against the defendant. The complaint had been served, but at the time of the making of the motion in question the time to answer had not expired. 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 circumstances, 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. The sole allegation, as already stated, in regard to the adultery of the defendant, is made by the plaintiff upon information and belief, with nothing whatever to show that she had any reasonable ground for any such belief.

The order should be reversed, and the motion denied, without costs, with leave to renew upon further proofs.