Smith v. Smith

Appellate Division of the Supreme Court of New York

Smith v. Smith

11 A.D.2d 596, 200 N.Y.S.2d 542, 1960 N.Y. App. Div. LEXIS 9955

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 16, 1960

StatusPublished

Cited by1 cases

This text of 11 A.D.2d 596 (Smith v. Smith) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Smith, 11 A.D.2d 596, 200 N.Y.S.2d 542, 1960 N.Y. App. Div. LEXIS 9955 (N.Y. Ct. App. 1960).

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Opinion

— Defendant appeals from so much of an order of the Supreme Court as grants $15 per week temporary alimony to plaintiff in a separation action. The defendant asserts that the complaint and moving papers do not show merit and a reasonable probability of success. We agree with appellant that mere quarrels and bickering are not a ground for separation, but the papers allege much more than that, and if the allegations are established provide adequate ground upon which the court could grant a separation. The court cannot try the merits upon affidavits, and, in its discretion allowed a modest sum for temporary alimony. If there be no merit to plaintiff’s ease defendant should press for a prompt trial and thereby obtain relief. Order unanimously affirmed, without costs. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.

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— Defendant appeals from so much of an order of the Supreme Court as grants $15 per week temporary alimony to plaintiff in a separation action. The defendant asserts that the complaint and moving papers do not show merit and a reasonable probability of success. We agree with appellant that mere quarrels and bickering are not a ground for separation, but the papers allege much more than that, and if the allegations are established provide adequate ground upon which the court could grant a separation. The court cannot try the merits upon affidavits, and, in its discretion allowed a modest sum for temporary alimony. If there be no merit to plaintiff’s ease defendant should press for a prompt trial and thereby obtain relief. Order unanimously affirmed, without costs. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.

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Bluebook (online)

11 A.D.2d 596, 200 N.Y.S.2d 542, 1960 N.Y. App. Div. LEXIS 9955, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-smith-nyappdiv-1960.

Opinion

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