Fowler v. Fowler

New York Supreme Court

Fowler v. Fowler

4 Abb. Pr. 411

DecidedMay 15, 1857

StatusPublished

This text of 4 Abb. Pr. 411 (Fowler v. Fowler) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fowler v. Fowler, 4 Abb. Pr. 411 (N.Y. Super. Ct. 1857).

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Opinion

Mitchell, J.

—The charges made by the defendant against Dr. M. are entirely unsustained; so far as there is any evidence on the subject, they are disproved. She is now boarding at his house, and it seems to be a suitable place : it is probable the plaintiff is of a violent temper and difficult to be pleased, and that it is not easy for her to find persons who may be willing to board her. The last is a reason why she should be allowed to remain in any suitable place that she selects.

On this reference it was not necessary for the plaintiff to prove her case on the merits. The defendant could prove her misconduct only with a view to show that it was so glaring that no aid should be given to her to prosecute her suit, or if she had been charged with adultery, and were still living with the partner of- her guilt. But a charge of former misconduct, or proof of it, does not deprive her of the right to the means of supporting herself and her child during the litigation, and of means to sustain the suit.

It may, with such proof as there is here, be a reason for making both very moderate. The referee allows $35 for counsel fee— that is moderate; but under the circumstances now proved should not be increased, unless a different state of facts should appear.

The same circumstances make it proper that a very moderate sum be allowed for her support: she seems to have been the cause of the final separation between her and her husband. The referee allows her $8 a week, payable weekly. Considering her conduct and the husband’s probable ability; let it be $28 per month, payable monthly, from 24th of March last. The defendant having answered, cannot now object to the uncertainty of the complaint.

If counsel accept the above sum, it will be with the understanding that they are to continue the suit without further in crease of it until a trial shall take place, provided the defendant consent to aid in expediting the cause.

If the plaintiff should delay the cause, that also will be ground for discontinuing the allowance. This is not like the cases in 2 Barb. Ch. R. and 3 Edwards,

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Mitchell, J.

—The charges made by the defendant against Dr. M. are entirely unsustained; so far as there is any evidence on the subject, they are disproved. She is now boarding at his house, and it seems to be a suitable place : it is probable the plaintiff is of a violent temper and difficult to be pleased, and that it is not easy for her to find persons who may be willing to board her. The last is a reason why she should be allowed to remain in any suitable place that she selects.

On this reference it was not necessary for the plaintiff to prove her case on the merits. The defendant could prove her misconduct only with a view to show that it was so glaring that no aid should be given to her to prosecute her suit, or if she had been charged with adultery, and were still living with the partner of- her guilt. But a charge of former misconduct, or proof of it, does not deprive her of the right to the means of supporting herself and her child during the litigation, and of means to sustain the suit.

It may, with such proof as there is here, be a reason for making both very moderate. The referee allows $35 for counsel fee— that is moderate; but under the circumstances now proved should not be increased, unless a different state of facts should appear.

The same circumstances make it proper that a very moderate sum be allowed for her support: she seems to have been the cause of the final separation between her and her husband. The referee allows her $8 a week, payable weekly. Considering her conduct and the husband’s probable ability; let it be $28 per month, payable monthly, from 24th of March last. The defendant having answered, cannot now object to the uncertainty of the complaint.

If counsel accept the above sum, it will be with the understanding that they are to continue the suit without further in crease of it until a trial shall take place, provided the defendant consent to aid in expediting the cause.

If the plaintiff should delay the cause, that also will be ground for discontinuing the allowance. This is not like the cases in 2 Barb. Ch. R. and 3 Edwards,

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Bluebook (online)

4 Abb. Pr. 411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fowler-v-fowler-nysupct-1857.