Kunze v. Kunze — 53 N.Y.S. 938

Majority

p. 938

KUNZE v. KUNZE.

(Supreme Court, Special Term, New York County.

March 16, 1898.)

Headnote

¡L Divorce—Allowance to Wife—Counsel Fees.

A husband who commences an action for divorce is bound to furnish his wife the means to defend it, and must pay her counsel fees.

2. Same—Alimony—Modification of Order.

A reasonable allowance of alimony will not be modified becanse the husband lost his employment through the wife’s acts.

Action by one Kunze for divorce. Heard on motion to modify an allowance of temporary alimony and counsel fees.

Denied.

Henry Levy, for the motion.

J. M. Ferguson, opposed.

Motion to modify order for alimony and counsel fee on the ground that since the making of the order the plaintiff has lost Ms situation through the efforts of the defendant, his wife, and has since been unable to obtain permanent employment. The motion cannot be granted. So far as the counsel fee is concerned, the husband, having commenced the action, is bound to furnish his wife the means to defend it, and, if he continues the prosecution, he must pay her counsel fee. As to the alimony, it' was fixed at what was a reasonable rate, in view of the condition of the parties, and no modification is necessary. The facts now urged by plaintiff may be a good defense to any attempt by his wife to enforce payment by contempt proceedings of installments accruing while he is disabled by her act from earning money. When he is again in a position to acquire the means to pay, the order will be enforced, and should accordingly stand, so as to apply to future earnings.

Motion denied.