Boesenberg v. Boesenberg — 63 N.Y.S. 770

Majority

p. 770

BOESENBERG v. BOESENBERG.

(Supreme Court, Appellate Division, First Department.

April 2, 1900.)

Headnote

Divorce — Temporary Altmony — Counsel Fee — Excessive Allowance.

Where the plaintiff and defendant in a divorce suit had entered into articles of separation, by which plaintiff agreed to pay defendant $25 per week alimony to support herself and child, and defendant claimed that his income was not more than $100 per month, and it was shown by affidavits, though not conclusively, that the defendant had been guilty of adultery, an allowance of $25 per week alimony pending the divorce suit, and $300 for counsel fee, was excessive, and should be reduced to $15 per week alimony, and $150 for counsel fee.

Appeal from special term, New York county.

Action by Herman Boesenberg against Emma Boesenberg for divorce. From an order granting the -defendant temporary alimony and counsel fee, plaintiff appeals.

Modified.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, McLAUGHLIN, and PATTERSON, JJ.

A. H. Hummel, for appellant.

Alfred Steckler, for respondent.

Notwithstanding the strong array of proof made against this defendant in the affidavits presented by the plaintiff in opposition to the motion for alimony and counsel fee, we are of the opinion that the issue as to her adultery should not be determined upon affidavits, and that she should have an opportunity to cross-examine the affiants whose sworn statements so strongly inculpate her. She positively denies having committed any of the acts of adultery with which she is charged. She claims, and her claim has some support, that she left the plaintiff by reason of his gross brutality, and there is much in the presentation of her side of the case to justify us in forbearing to determine now that she is so conclusively proven guilty as to deprive her of support pending suit, and of money necessary to pay counsel for her defense. The case is not like Stearns v. Stearns (Sup.) 53 N. Y. Supp. 348 , in which the undisputed and unexplained facts showed that the denial of a charge of adultery was absolutely false.

Under the circumstances of this case, however, we think the allowance both for counsel fee and alimony was too large, and the order appealed from should be modified by reducing the alimony to $15 a week, and the counsel fee to $150; and, as modified, the order should be affirmed, without costs.