Opinion
March 14, 1919.
Leo R. Brilles, for the appellant.
Thomas O'Rourke Gallagher, for the respondent.
The adultery charged by the husband is denied under oath, and though he reads affidavits of others that support his charge, the wife is not to be denied alimony pendente lite and counsel fee ( Osgood v. Osgood, 2 Paige, 621; Williams v. Williams, 3 Barb. Ch. 629), unless the case thus presented is cogent and convincing to the last degree. We cannot say that the case at bar is within the exception.
The wife's affidavit is sufficient to justify the conclusion that she is in need of alimony pendente lite and counsel fee. The Special Term allowed $30 a week and a counsel fee of $250. The separation agreement between the parties, dated July, 1918, whereby the plaintiff undertook to pay to defendant $30 a week, afforded a criterion to the Special Term ( Thrall v. Thrall, 83 Hun, 188), in view of the fact that the plaintiff admits that he is under a three-year contract that affords him $160 a week for the first year, $170 a week for the second year and $180 a week for the third year, although he deposes the theatrical season is about 30 weeks. The counsel fee is not unreasonable, in view of the evidence that will be offered, as indicated in the affidavits of both parties.
The condition of our calendars is such that this action can be tried at an early day. If the plaintiff delay trial, he cannot complain. If the defendant avoid trial with a purpose to pervert a provision that is temporary into one that is permanent, the plaintiff has his remedy.
The order is affirmed, with $10 costs and disbursements.
MILLS, PUTNAM, BLACKMAR and KELLY, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.