Smith v. Smith

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

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.