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Israel v. Israel

59 N.Y.S. 800 Court N.Y. Sup. Ct. English

Delivered by GILDERSLEEVE, J.

Contents

Majority

p. 800
(28 Misc. Rep. 57.)
ISRAEL v. ISRAEL.
(Supreme Court, Special Term, New York County.
June, 1899.)

Headnote

1. Divorce—Alimony and Counsel Fees.
During an action by a wife for separation on the ground of cruelty, alimony and counsel fees will not be allowed to plaintiff, as police remedies are ample. ■
2. Same—Alimony and Counsel Fees.
During an action by a husband for a divorce on the ground of adultery, where the wife denies the adultery under - oath, and her guilt does not clearly appear, she will be allowed alimony and counsel fees.
Action for separation by Tillie B. Israel against Abraham Israel, and cross action for divorce.
Motion for alimony and counsel fees. Granted as to the cross action for divorce, and denied as to the action for separation.
Moses Weinman, for the motion. ,
Eugene Treadwell, opposed.

There are two actions,—one by the wife, Tillie B. Israel, against her husband, Abraham Israel, for a separation on the ground of cruel and inhuman conduct; and the other by the husband against the wife for divorce on the ground of adultery. Alimony and counsel fee are asked in each case. In separation cases it is not my custom to allow alimony, for the reason that the police courts provide the wife with every means to compel her husband to furnish her with proper support and maintenance, and there is no reason why such applications should be made to the supreme court. I' therefore deny the motion in the separation case, without costs, and without prejudice to police remedies. As for the divorce case, in which the wife is defendant, the rule is 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, but should await the termination of the .action, unless, indeed, the wife’s guilt appears established beyond all reasonable doubt. See Frickel v. Frickel, 4 Misc. Rep. 382 , 24 N. Y. Supp. 483 . In the case at bar the wife does deny, on oath, the charge, and it cannot be said that her guilt is established beyond all reasonable doubt. The motion in the divorce case is therefore granted, The alimony is fixed at $30 a week, and the. counsel fee at the sum of $200.

Ordered accordingly.

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