Opinion
September 28, 1938.
Plaintiff appeals from an order denying her temporary alimony and counsel fees. Plaintiff brought an action for separation on the grounds of cruel and inhuman treatment. The defendant, in his answer, first denied the allegations of the plaintiff's complaint and then, as a counterclaim, demanded an absolute divorce. The plaintiff, by the counterclaim set forth in defendant's answer, is, therefore, faced with the necessity of defending her good name and reputation and should have been granted temporary alimony and counsel fees. The order of the Special Term should be reversed, with costs, and the plaintiff is awarded a counsel fee of one hundred dollars; fifty dollars payable at once and fifty dollars upon the beginning of the trial and should be awarded temporary alimony of five dollars a week from the commencement of the action, the back alimony to be paid at once and afterwards at the rate of five dollars per week until the determination of the action. Order of Special Term reversed, on the law and facts, with ten dollars costs and disbursements, and order granted for temporary alimony of five dollars per week, and counsel fee of one hundred dollars; fifty dollars payable upon the entry and service of a copy of the order to be entered thereon, and fifty dollars upon the beginning of the trial. Hill, P.J., Rhodes, McNamee, Crapser and Bliss, JJ., concur.