Barchoff v. Barchoff

18 A.D.2d 660, 235 N.Y.S.2d 448, 1962 N.Y. App. Div. LEXIS 6688

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 3, 1962
• Status: Published

Opinion

In an action for absolute divorce by a husband, in which the wife counterclaimed for a judicial separation, the wife appeals from an order of the Supreme Court, Westchester County, dated June 12, 1962, which denied her motion for alimony, counsel fees, and other sums pendente lite, with leave to renew the motion upon the trial. Order reversed, with $10 costs and disbursements, and motion granted to the following extent: (a) plaintiff is directed to pay to the defendant for her support and for maintenance of the child of the marriage, pendente lite, $100 a week, commencing one week after the date of the order appealed from; and (b) plaintiff is directed to pay to the defendant, within 10 days after entry of the order hereon, $1,000 as a counsel fee, with leave to the defendant, if she be so advised, to apply to the trial court for an additional counsel fee. In our opinion, on this record it was an improvident exercise of discretion to deny the wife’s motion to the extent indicated. She has shown: (1) that she has a meritorious defense to her husband’s action for divorce (cf. Stillman v. Stillman, 199 App. Div. 735, 736; Luizza v. Luizza, 115 N. Y. S. 2d 313, affd. 279 App. Div. 1085; Shaw v. Shaw, 266 App. Div. 983; Pratt v. Pratt, 255 App. Div. 744; Eisenbrock v. Eisenbrock, 187 App. Div. 85; Glaser v. Glaser, 36 Misc. 231); and (2) that awards in the amounts herein granted are reasonably necessary to enable her to defend the action and to provide suitably for her support and for maintenance of the child of the marriage (Civ. Prac. Act, § 1169; Phillips v. Phillips, 1 A D 2d 393, 396, affd. 2 N Y 2d 742; Seitz v. Seitz, 192 App. Div. 924). Beldock, P. J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.