Burgwinkel v. Burgwinkel

269 A.D. 943, 57 N.Y.S.2d 732, 1945 N.Y. App. Div. LEXIS 4670

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 8, 1945
• Status: Published

Opinion

Appeal by defendant from an order granting plaintiff temporary alimony and counsel fees in an action for absolute divorce. Order reversed on the law, without costs, and the motion denied, without costs, without prejudice to plaintiff renewing the motion upon proper papers. The moving papers consisted of the affidavit of plaintiff supporting the allegations of her verified complaint, without further proof. Where the only proof of the adultery charged is that of plaintiff wife, unsupported by competent proof, a motion for temporary alimony and counsel fees should be denied. (Cassese v. Cassese, 223 App. Div. 843; Capes v. Capes, 173 App. Div. 142.) Close, P. J., Carswell, Adel, Lewis and Aldrich, JJ., concur.