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absolute divorce and judgment dissolving the marriage between them for the defendant's adultery [or, for a limited divorce or judgment of separation between them for defendant's cruelty — or otherwise],' as more fully appears by the complaint' hereto annexed * [and if the complaint is unverified, may add: all the allegations of which are true to the knowledge of deponent, except such as are stated on information and belief, and those she is informed and believes are true, as shown by the annexed affidavits of
II. That the action has been actually commenced by the service, on defendant (personally], on the 19 , of the summons and complaint; [here state condition of cause, as thus:]"3 that defendant has not answered nor demurred [or if he has answered denying the charges] ; that defendant has appeared and answered, denying several material allegations of the complaint; that all said allegations are nevertheless true. [Set forth facts in detail showing good cause for bringing the action, unless verified complaint is presented as sufficient evidence;14 * in absolute divorce annex affidavits establishing defendant's adultery, and the jurisdictional fact of the residence of plaintiff when necessary. ] 14a
consideration of the difficulty of establishing the action, probable expense, and husband's financial condition. Patterson '. Patterson, 4 App. Div. 146, 38 N. Y. Supp. 637. Therefore these matters should be fully covered in the moving papers. No evidence need be furnished, however, to enable the amount of the counsel fee to be fixed. De Llamosas 1'. same, 62 N. Y. 618. The application is to be made as a motion in the action, and not by instituting a proceeding by petition. Kirsch v. Kirsch, 18 N. Y. Supp. 447.
9 Various Special Term decisions refusing to award temporary alimony in actions for separation, and relegating the wife to an application to a police magistrate have been over-ruled by Wiegand 1. Wiegand, 103 App. Dix. 42, 92 N. Y. Supp. 679, 34 Civ. Pro. 186.
The court has power, incident to its jurisdiction to annul a marriage for its original infirmity, to grant a counsel fee and temporary alimony in a husband's action to annul a marriage. Higgins ('. Sharp, 164 N. Y. 4; Griffin 1. Griffin, 47 N. Y. 134.
But such applications cannot be granted in a wife's action. Jones v. Brinsmade, 183 N. Y. 258.
A parent or next friend suing for the annulment of the marriage of an infant, idiot or lunatic, cannot be re. quired to pay alimony or counsel fee to the defendant wife. Stivers ('. Wise, 18 App. Div. 316, 46 N. Y. Supp. 9.
10 The application may be made before a copy of the complaint has been served, yet in such case the affidavit must allege, in substance, all the facts necessary to make a good complaint in the action. If the action is for adultery, omitting to show in the affidavit when and where the defendant committed adultery, precludes the court from granting the order. Whitney r. Whitney, 22 How. Pr. 175. And since plaintiff is incompetent as a witness, the moving papers should show that competent proof of the offense exists.
11 If the complaint is not presented, allege both the marriage and the facts constituting the cause of action.
12 Weishaupt v. Weishaupt, 27 Wis. 621; Hollerman 1. Hollerman, 1 Barb. 64; Bissell v. Bissell, Id. 430, 3 How. Pr. 242; Desbrough v. Desbrough, 29 Hun, 592.
13 Van Wormer x. Van Wormer, 57 Hun, 496, 11 N. Y. Supp. 247 (counsel fee for a second trial may be allowed after a disagreement).
+ III. That said [husband] has left deponent and ceased to provide for her support15 [and that of the children of said marriage], and your petitioner is [wholly] destitute of the means of supporting herself (and said children], pending this action, and carrying on this action S, and defraying the costs and expenses attending the same (that the only property or income which she has, is: here state it ;16 and if there are children of the marriage, dependent on her, state facts17 concerning them].
IV. That the said [husband] has [real estate and personal] property to a large amount, and amply sufficient to enable him to pay therefrom, to deponent, such sums as may be necessary for the above-mentioned purposes [state details, as thus:] that in particular said defendant has $3,000 now in bank, and owns a house and lot, No.
, worth, over and above incumbrances, the sum of $10,000, and is the owner of other property consisting of [describe] to the value of more than dollars [if of a character requiring peculiar knowledge to state value, annex affidavit of competent person] ; that defendant is a [physician in active practice] and that his net annual income is about dollars [add, also, any other facts which bear on the question of his ability to pay and the grade of living to which plaintiff was accustomed while supported by him].
14 See note 12. A fair presumption of the fact of marriage should be made out, if the marriage is denied. Brinklev r. Brinkley, 50 N. Y, 184, 10 Am. R. 460; Smith v. Smith, 61 Iowa, 138; Collins v. Collins, 80 N. Y. 1; York u. York, 34 Iowa, 530; and see Herforth r. Herforth, 2 Abb. Pr. (N. S.) 483, 489.
14a As plaintiff is herself incompe. tent to prove either. Wood v. Wood, 61 App. Div. 96, 70 N. Y. Supp. 72; Hodge r, Hodge, 90 App. Div. 611.
If the adultery is charged on information and belief, and is denied positively, alimony will be denied. Downing r. Downing. 23 App. Div. 5.59, 48 N. Y. Supp. 727.
Maxwell 1. Maxwell, 28 Hun, 566. Alimony denied where in action for separation the wife was living with husband. Smith v. Smith, 92 App. Div. 442, 87 N. Y. Supp. 137.
16 If wife has separate property, alimony may be awarded only if necessary. Merritt . Merritt. 99 N. Y. 643 ; Collins v. Collins, 80 N. Y. 1; Richardson 1, same, 94 N. Y. Supp. 582. But the wife's inability to support herself, and the husband's ability to pay are necessarily established be. fore alimony may be awarded. Poillon 1. Poillon, 75 App. Div. 536, 78 N. Y. Supp. 323.
15 Boubon r. Boubon, 3 Robt. 715; Collins r. Collins, 80 N. Y. l; previous decision in s. C., 71 id. 269;
17 If alimony is sought to cover past expenses, state necessity; see Beadleston v. Beadleston. 103 X. Y. 40:2; s, C., 4 Centr. Rep. 537, rey'g 39 Hun, 658.
V. [If an order to show cause is asked, state as to reason, and previous application; 18 see Forms 816 and 817 of this volume.]
WHEREFORE, deponent prays that an order be made requiring said [husband] to pay her a reasonable sum for her support and maintenance (and that of the aforesaid children], during the pendency of this action," and such sums as may be necessary to enable her to carry on this action, $ and to defray the necessary costs and expenses thereof; 20 and for such other and further order as may be just.21 [Jurat.]
[Signature.] [Notice of motion or order to show cause, Form 997.]
FORM No. 995.
The same; application pending appeal.22 [Title of court and cause.] [Venue.]
A. B., being duly sworn, says that she is the [plaintiff] in this action. That heretofore and on the day of
, 19 , a judgment of [separation) was duly rendered herein ir favor of
18 If a previous application was denied, show a change of circumstances warranting a different determination. Simonds r. Simonds, 57 Hun, 290, 10 N. Y. Supp. 606.
19 Only for future support. Thrall r. Thrall, 83 Hun, 188, 31 N. Y. Supp. 591. But by common practice dating from the commencement of the action. Past expenses may be included in final judgment of separation. Percival v. Percival, 124 N. Y. 637.
20 No counsel fee can be allowed in final judgment (Atherton ('. Atherton, 82 Hun, 179, 31 N. 1. Supp. 977) and no more than taxable costs. Lonsdale 0. Lonsdale, 41 App. Div. 224, 58 N. Y. Supp. 532. Allowance for past services and expenses refused (Emerson v. Emerson, 26 N. Y. Supp. 292), unless shown necessary in order that wife may further prosecute or defend. McCarthy Ľ. same, 137 N. Y. 500; Beadleston 1. same, 103 N. Y. 402; Poillon v. Poillon, 75 App. Div. 536, 78 N. Y. Supp. 323.
21 Should an award of custody of
children be desired, it must be specifically asked. Wood v. Wood, 61 App. Div. 96, 70 N. Y. Supp. 72.
22 No allowance for counsel fee will be made to the plaintiff wife who has recovered judgment in her favor, but who desires to appeal therefrom. Winkemeier 1. Same, 11 App. Div. 201, 42 N. Y. Supp. 588.
Where the defendant husband appeals from a judgment of separation, an award of temporary alimony and counsel fee is proper, although no award was made pendente lite and the husband has effected a stay by giving an undertaking. Haddock v. Haddock, 75 App. Div. 565, 78 N. Y. Supp. 304, 12 Anno. Cas. 14. So, where a similar stay has been effected, pending an appeal to the U. S. Supreme Court. Haddock 1. Haddock, 109 App. Div. 502, 96 N. Y. Supp. 522.
Counsel fee and expense of preparing appeal record allowed pending appeal by wife from judgment of divorce against her. Halsted i. Halsted, il Misc. 592, 32 N. Y. Supp. 1080.
the plaintiff, wherein defendant was adjudged to pay alimony at the rate of $ per week, and costs amounting to $ That a certified copy of said judgment is hereunto annexed.
That on the day of , 19 , defendant duly appealed from said judgment to the Appellate Division, and gave an undertaking as required by law to procure a stay of proceedings under said judgment. That defendant has not complied with said judgment, either by the payment of alimony or of costs.
[Allege circumstances disclosing plaintiff's necessity for immediate payments of alimony,23 and an allowance of counsel fee upon the appeal.]
[If judgment for divorce has been rendered against the wife, allege facts showing that appeal is meritorious. ] 24
FORM No. 996. The same; for alimony and counsel fee by wife, defendant.26 [Commencement as in preceding Form.]
I. That the plaintiff, A. B., has commenced an action, by the service of a summons and complaint on deponent, to obtain a judgment annulling the marriage between him and the deponent26 (or otherwise, as in I of Form 994]; and that deponent has answered, denying under oath all the material allegations in said complaint, except the allegation as to the marriage between this defendant and said plaintiff.* [Elaborate the denials as contained in the answer, and especially deny the allegation of adultery; 27 may annex corroborating affidavits, particularly that of alleged co-respondent].
[Conclude as in Form 940 from the t, at beginning of III; but at the SS, substitute the words“ her defense” for “this action.”]
23 The sum so paid should be ordered credited upon the judgment in case of affirmance. McBride v. Me Bride, 119 N. Y. 519; Haddock . Haddock, supra.
24 Halsted v. Halsted, supra.
25 Counsel fee should be allowed unless it is clear, beyond reasonable doubt, that the husband's action is well founded. Boesenberg v. Boesen berg, 50 App. Div. 622, 63 N. Y. Supp. 770: Dean i. Dean, 48 Misc. 149, 96 X. Y. Supp. 472; Frickel 1. Frickel, 4 Misc. 382, 24 N. Y. Supp. 483; Cohen r. Cohen, 11 Misc. *704, 32 X. Y. Supp. 1082, 1 Anno. Cas. 226. The husband's poverty is not a complete answer to the application. Id.
The court will not determine the merits of the action on the motion. Hawley r. Hawley, 95 App. Div. 274, 88 N. Y. Supp. 606.
26 See note 9 to Form 994.
27 Where adultery charged is not denied by the wife, the application should be denied. Miller i Miller, 27 Misc. 758, 59 N. Y. Supp. 473; or if the charge is evasively met. Petee v. Petee, 19 N. Y. Supp. 311.
28 The court gives little weight to the affidavit of a man who swears to intercourse with the wife. See Glaser
. Glaser, 36 Misc. 231, 73 N. Y. Supp. 284.
FORM No. 997. Notice of motion, or order to show cause, for alimony. [As in Form 815 or 818, substituting for the italic clause between the I and the 1:] that the defendant [or, plaintiff] pay the plaintiff [or, defendant] the sum of dollars monthly [or, weekly) for her support (and the education and maintenance of the children, in said affidavit mentioned], during the pendency of this action [dating from the commencement thereof on the day of
,19 ), and the sum of dollars as a counsel fee and to enable her to defray the costs and expenses of the said action [or, her defense to said action], and for such other and further relief as may be just.
FORM No. 998. Order directing reference as to counsel fee or alimony, or both.29 [Caption (court order) and recitals, according to the circumstances; see Form 820 of this volume.] ORDERED, that it is referred to R. F., Esq., who is hereby appointed referee for the purpose, to inquire and report [whether alimony should be granted, and if so] what is a reasonable sum to allow said [wife] for her support (and the education and support of the children of the marriage] during the pendency of this action and from what time, and the times and manner for payment (and what security, if any, should be required — and what sum should be allowed for counsel fee and other costs and expenses of this action.30]
Enter: [signature of judge by initials of name and title.]
FORM No. 999.
Order to pay alimony and counsel fee,31 [Caption (court order), and recitals, see Form 820 of this volume.) ORDERED, 1. That [defendant) pay to (plaintiff's] attorney the sum of dollars hereby allowed as counsel fee32,
29 See Gerard v. Gerard, 2 Barb. Ch. 73; Ward v. Ward, 21 N. Y. Supp. 795.
30 Or may award counsel fee and refer question of alimony. Brennan V. Brennan, 19 Wkly. Dig. 342. A reference should only be directed upon particular necessity therefor.
31 This order cannot be enforced by execution, nor can supplementary proceedings be based upon it. It must be enforced through sequestration, or contempt proceedings. Weber u.
Weber, 93 App. Div. 149, 87 N. Y.
The estate of a deceased husband is not liable, either for alimony or unpaid counsel fee. Johns v. Johns, 44 App. Div. 533, 60 N. Y. Supp. 865; Kellogg 1. Stoddard, 89 App. Div. 134, 84 N. Y. Supp. 1015; Wilson v. Hin. man, 182 N. Y, 408.
32 The order may direct money to be applied to a specific purpose, such as referee's fees, instead of directing that it be used for the purposes of