Majority
p. 473(27 Misc. Rep. 758.) MILLER v. MILLER. (Supreme Court, Special Term, New York County. June, 1899.)
Headnote
Divorce—Adultery of Wife—Alimony and Counsel Fee—Moving Papers.In an action by a husband for absolute divorce on the ground of adultery, while the rule is that, where the wife denies on oath the charge, she will be allowed alimony and counsel fée, even though the husband submits affidavits in support of the charge, unless her guilt appears established beyond all reasonable doubt, where no papers are handed up on a motion by the wife for such allowance showing a denial on oath of the charge, and there are no allegations in the affidavit presented by her upon which the court can with satisfactory certainty base a finding as to the husband’s income, the application will be denied, without costs, with leave to renew it on proper papers.
Action by Hugh J. Miller against Annie B. Miller for absolute divorce. Motion for alimony and counsel fee.
Denied, without costs.
D. F. Hanrehan, for the motion.
Sands & Wasservogel, opposed.
This is a motion for alimony and counsel fee. The action is for an absolute divorce, instituted by the husband against tile wife. It is well settled in a case of this kind that, where the wife denies on oath the charge of adultery, she will be allowed alimony and counsel fee, even though the husband submits affidavits in support of the charge, as so important a question should not be decided on conflicting affidavits, unless, indeed, the wife’s guilt appears established beyond all reasonable doubt. See Frickel
p. 474
v. Frickel, 4 Misc. Rep. 382 , 24 N. Y. Supp. 483 . In the case at bar, however, no papers are handed up on the motion showing a denial on oath of the charge of adultery. Furthermore, there are no allegations, in the one affidavit presented by defendant, upon which the court can with satisfactory certainty base a finding as to the amount of the income of the husband. I am of opinion that the motion papers are insufficient, and that the application must be denied, with leave to defendant to renew the same on proper papers. No-costs.
Motion denied, with leave to renew. No costs.
Cases cited
- Frickel v. Frickel 4 Misc. Rep. 382 p. 474