Sierson v. Sierson

Order reversed on the facts, without costs of this appeal to either party, and motion denied, without costs. Memorandum: Plaintiff left her husband and sued for a separation alleging habitual intoxication, cruel and inhuman treatment and failure to support. Defendant’s answer beside denials of plaintiff’s charges, set up a counterclaim alleging unjustifiable abandonment of defendant. The order allowing plaintiff temporary alimony and counsel fees is based upon the pleadings, plaintiff’s affidavit in support of the motion and defendant’s opposing affidavit. In view of the counterclaim, an allowance of counsel fees *900was proper. We think, however, that plaintiff on this record failed to show sufficient probability of her success in the action to warrant tibe granting of temporary alimony. The order so far as appealed from should be reversed on the facts, without costs, and the motion so far as it asks for temporary alimony should be denied. (See Heyman v. Heyman, 119 App. Div. 182; De Vide v. De Vide, 186 App. Div. 814; Brush v. Brush, 240 App. Div. 866.) All concur. (The order directs defendant to pay temporary alimony.) Present — Taylor, P. J., Dowling, Harris, McCurn and Love, JJ.