Majority
p. 994MASEY v. MASEY. (Supreme Court, Appellate Division, First Department. March 8, 1901.) Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O’BRIEN, and INGRAHAM, JJ.
Headnote
1. Divorce—Action by Husband—Wife’s Right to Counsel Fees.. In an action for divorce, in which defendant interposes a counterclaim against plaintiff of being a faithless husband, supplementing her defense by affidavits in support thereof, defendant is entitled to'counsel fees, on motion therefor.
8. Same—Right to Alimony.
Defendant in such case is not entitled to temporary alimony.
Appeal from special term, New York county.
Action for divorce by Harry Masey against Lulu May Masey. From an order denying a motion for alimony and counsel fees, plaintiff appeals.
Modified.
Daniel S. Decker, for appellant.
Frank A. Butler, for respondent.
If there were presented but the single question as to the probability of the defendant’s succeeding upon the trial with respect to the charge made against her, we should concur in the conclusion reached by the learned judge in denying her motion. We think, however, that he overlooked the fact that she interposed the counterclaim against the plaintiff of being a faithless husband. Supplemented as this defense is by the affidavits in support of it, we think, apart from the probability of the defendant’s success in meet
p. 995
ing her husband’s charge, that she should be permitted to establish such defense, if she can, upon the trial; and, to that end, some amount should be awarded her as counsel fees, although that part of the order appealed from which denied alimony should be affirmed.
. The order, accordingly, should be modified by inserting a provision granting to the defendant counsel fees to the extent of $75, and as so modified affirmed, without costs.