Zimmerman v. Zimmerman

254 A.D. 645, 3 N.Y.S.2d 251, 1938 N.Y. App. Div. LEXIS 6862

Opinion

— Order reversed upon the facts, without costs, and motion denied, without costs, upon the ground that plaintiff’s affidavit, unsupported by other proofs, fails to show sufficient probability that plaintiff will succeed upon the trial in establishing that there was a common-law marriage between herself and defendant. Defendant’s affidavit, supported by many affidavits of apparently disinterested persons, refutes plaintiff’s claim in this respect. Under such circumstances, the award of counsel fees and temporary alimony should not have been granted. (Brush v. Brush, 240 App. Div. 866; DeVide v. DeVide, 186 id. 814; Bolnick v. Bolnick, 223 id. 772; Cassese v. Cassese, Id. 843; Werner v. Werner, 204 id. 791). All concur. (The order directs defendant to pay alimony and counsel fees.) Present — Sears, P. J., Crosby, Cunningham, Taylor and Dowling, JJ.