Opinion
March Term, 1901.
Present — Van Brunt, P.J., Patterson, O'Brien, Ingraham and McLaughlin, JJ.
Order modified by awarding to the defendant seventy-five dollars as counsel fees, and as so modified affirmed, without costs.
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 meeting 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 seventy-five dollars, and as so modified affirmed, without costs.