Miller v. Miller

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: *759indeed the wife’s guilt appears established beyond all reasonable doubt. See Frickel v. Frickel, 4 Misc. Rep. 382; 24 N. Y. Supp. 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. Ho costs. '

Motion denied, with leave to renew. Ho costs.