McCracken v. McCracken

213 A.D. 768, 210 N.Y.S. 881, 1925 N.Y. App. Div. LEXIS 8587

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 12, 1925
• Status: Published

Opinion

Martin, J.:

The plaintiff commenced an action for a separation on the ground of abandonment and non-support. The answer was confined to denials.

• After the trial the complaint was dismissed upon the merits. Decision and judgment followed in due course. A notice of appeal from such disposition of the action was served on March 27, 1925, and the appeal is now pending undetermined.

On the motion plaintiff filed an affidavit verified by herself in which she set forth at length her reasons for the appeal. In thus stating the grounds she set forth that the decision found, both as a conclusion of fact and as a conclusion of law, that plaintiff had abandoned defendant, though he sought no affirmative relief. Other assignments of error are also set forth.

We believe that her papers indicated that the appeal is, in at least some respects, meritorious and that, to such extent, it is shown that the appeal can probably be successfully prosecuted.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted so far as to order that one hundred dollars be paid to plaintiff for counsel fees and essential disbursements on the appeal, payment to be made after the case has been served and filed.

Clarke, P. J., Dowling, Finch and McAvoy, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion granted to the extent indicated in opinion.