Majority
p. 405(27 Misc. Rep. 125.) WABBERSON v. WABBERSON. (Supreme Court, Special Term, New York County. April 5, 1899.)
Headnote
Annulling Marriage—Alimony—Counsel Fees.In an action by a husband to annul a marriage, the wife is entitled to alimony pendente lite, and to counsel fees.
Action by August Wabberson against Carrie Wabberson to annul a marriage on the ground that when it was contracted the wife had a husband living. Motion for alimony and counsel fees.
Granted.
H. T. Brown, for the motion.
Philip Carpenter, opposed.
The case of Lee v. Lee, 4 Civ. Proc. R. 321, is a direct authority for the allowance to the wife of alimony pendente lite, and counsel fees to enable her to defend an action brought by the husband to annul a marriage. The principle upon which such allowance was made was thus clearly stated by the court in Brinkley v. Brinkley, 50 N. Y. 190 , 193:
“Where an actual marital relation has been admitted or shown, and its existence is sought to be avoided by some fact set up by the husband, and it devolves upon him to show that fact, alimony will be granted until that fact is shown.”
This case, in its facts, comes directly within the above rule; and, after reading the motion papers, I conclude that the defendant should have a counsel fee of $30, to enable her to defend the action, and $4
p. 406
per week during the pendency thereof for the support of herself and-the two children of the marriage. The counsel fee may be paid in weekly installments of . $3 each. Settle order on notice.