Moriarty v. Moriarty — 58 N.Y. Super. Ct. 279

Majority

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DORETTA R. MORIARTY, by Guardian, Respondent v. JEREMIAH J. MORIARTY, Appellant.

Headnote

Alimony and counsel fees in actions against the husband for a divorce a, vinculo matrimonii, rule as to granting, when not granted.

Alimony is not granted as matter of course in actions by the wife against the husband for divorce a vinculo matrimonii, nor are counsel fees.

The wife, in order to obtain either alimony or counsel fees, must present a case to the court showing that she has a fair prospect of success in the action.

Where the charges of adultery are made on information and belief, and the husband positively denies them, she does not present such a case.

Before Freedman and Truax, JJ.

Decided June 27, 1890.

Appeal from an order directing the payment of alimony and counsel fees.

The facts sufficiently appear in the opinion.

Peter Mitchell, attorney and of counsel, for appellant, on the questions considered in its opinion, argued:—

It is clearly apparent that the plaintiff has failed to establish by legal proof, or by circumstances tending to fairly establish such proof, the fact of defendant’s adultery. And it is hardly necessary to urge the well established and elementary principle that “ hearsay evidence is no evidence,” and is irrelevant and inadmissible. Lund v. Tyngsborough, 9 Cushing Rep. 36.

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George F. Martens, attorney and of counsel, for respondent, on the questions considered in the opinion, argued :—

I. In actions for divorce the court has power to make an order requiring the husband to pay alimony and counsel fees, and the amount of the allowance is in the discretion of the court, and is fixed after a full consideration of all the facts and circumstances in the case. Code Civil Procedure, 1769 ; De Llamasas v. De Llamasas, 62 N. Y. 618 ; McBride v. McBride, 53 Hun, 448 ; 15 Abb. (N. S.) p 307 ; Leslie v. Leslie, 11 lb. (N. S.) 311 ; Kennedy v. Kennedy, 73 N. Y. 373 ; Beadleston v. Beadleston, 103 lb. 402 ; Brinkley v. Brinkley, 50 lb. 184 ; Gilbert v. Gilbert, 5 N. Y. State Rep. 822 ; Winton v. Winton, 12 Abb. (N. S.) 159.

II. The facts shown by plaintiff on her application for alimony and .counsel fees were such as to entitle her to the relief sought.

III. The allowance for alimony and expenses in an action for divorce is within the discretion of the court of original jurisdiction, and unless so gross and excessive as to show an abuse of judicial discretion, the order granting it is not reviewable in the Court of Appeals. De Llamasas v. De Llamasas, 62 N. Y. 618 .

The action is brought to obtain an absolute divorce on the ground, of the adultery of the defendant. Alimony and counsel fees will not be granted in every action for divorce a vinculo brought by a wife against her husband. The plaintiff is bound, said the Court of Appeals in Collins v. Collins 71 N. Y. 275 , to present a case to the court showing that she has a fair prospect of success in the action. In the action at bar no such case was presented. The moving papers do not contain a single allegation relating to the adultery of the de

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fendant worthy a moment’s consideration by a court of justice. There are many vague statements in the moving papers to the effect that plaintiff had learned that defendant was living with a woman who claimed to be his wife ; that other affiants had ascertained that defendant was keeping house with a woman who was known in the house and who was reputed to be the wife of the defendant ; that on one occasion one of the affiants was informed by this woman that she had been living with defendant for two years and had occupied the same bed with him the night before, but we are not told from whom plaintiff obtained this information, and the statement that plaintiff had learned that defendant was keeping house with a woman is not an allegation that defendant was in fact keeping house with a woman. This court has lately held in the case of Martin v. Gross, 56 Super. Ct. 512, that a general assertion of a fact upon information and belief proves nothing. In the case before us it does not even appear that plaintiff believed what she “ascertained” or was “ informed ” about the defendant, and the defendant and his alleged paramour deny that they were living together as husband and wife or that they occupied a bed as above stated. Í think that the rule to be followed in cases of this kind is well stated in Monk v. Monk, 7 Rob. 153 ; that alimony and counsel fees will not be granted in an action of this kind where all the charges of adultery on the part of the husband are made on information and belief, if the defendant positively denies the charges.

Order appealed from reversed and the motion for alimony denied without costs, with leave to plaintiff to renew motion.

Fbeedmab, J., concurred.

Cases cited

Llamosas v. Llamosas 62 N. Y. 618 N.Y. 1875-05-25 p. 280
Monk v. Monk 7 Rob. 153 N.Y. Super. Ct. p. 281