Opinion
May 18, 1961
Appeal from the Erie Special Term.
Present — Williams, P.J., Bastow, Halpern, McClusky and Henry, JJ.
Order insofar as appealed from unanimously reversed, without costs of this appeal to either party and motion denied, without costs. Memorandum: In this separation action counsel fees were awarded although the papers filed by the plaintiff wife failed to show reasonable probability of success. Such papers were vague and conclusory and showed at best, one isolated act of physical violence by the defendant. The extent and result of such act were not stated. On the subsequent trial of the action the complaint was dismissed before the allowed counsel fees were paid. Although this was not necessarily conclusive on the question of the propriety of the allowance of counsel fees, it has some significance (cf. Polizotti v. Polizotti, 305 N.Y. 176).