Opinion
June, 1899.
D.F. Hanrehan, for motion.
Sands Wasservogel, opposed.
This is a motion for alimony and counsel fee. The action is for an absolute divorce, instituted by the husband against the wife. It is well settled, in a case of this kind, that where the wife denies, on oath, the charge of adultery, she will be allowed alimony and counsel fee, even though the husband submits affidavits in support of the charge, as so important a question should not be decided on conflicting affidavits; unless indeed the wife's guilt appears established beyond all reasonable doubt. See Frickel v. Frickel, 4 Misc. 382; 24 N.Y.S. 483. In the case at bar, however, no papers are handed up on the motion showing a denial, on oath, of the charge of adultery. Furthermore, there are no allegations, in the one affidavit presented by defendant, upon which the court can, with satisfactory certainty, base a finding as to the amount of the income of the husband. I am of opinion that the motion papers are insufficient and that the application must be denied, with leave to defendant to renew the same on proper papers. No costs.
Motion denied, with leave to renew. No costs.