Capes v. Capes

The plaintiff, in support of her motion for alimony and counsel fees, presents nothing from which the court can find sufficient reason to believe that there is a fair probability that on the trial of the issues the charge of adultery against defendant will be sustained. (Merrell v. Merrell, 168 App. Div. 896.) There is nothing except the allegation in the complaint that defendant did commit the act. It is true that this is alleged as of plaintiff’s own knowledge, but, even if she has personal knowledge of the fact, which is improbable, she coixld not testify to it on the trial. (See Code Civ. Proc. § 831.) If, therefore, she has no other evidence than that which she presents on this motion she must inevitably fail in her action.

*143The order should be reversed and motion denied, without prejudice to a renewal of the motion upon proper papers.

Clarke, P. J., Dowling, Smith and Page, JJ., concurred.

Order reversed and motion denied, without prejudice to renewal of motion upon proper papers.