Opinion
March Term, 1901.
Order modified by reducing the allowance from thirty dollars to ten dollars per week, and as so modified, affirmed. — Order to be settled before Chase, J.
The reference in Merritt v. Merritt ( 99 N.Y. 643) to Collins v. Collins (80 id. 1) deprives the latter case of much of the force that the appellant's counsel would ascribe to it. Under the prior case we must assume that although the wife has some means of her own, yet if it is inadequate to furnish her the support which she needs, that fact will not deprive the court, in the exercise of its discretion, from awarding her further needed assistance in the form of alimony pendente lite. It is, however, a fact which must be considered not only as to whether any should be given, but also as to the amount that shall be awarded her. The defendant owns in her own right the old homestead in the village where she and her husband had lived since their marriage. In May, 1898, the husband ceased to live there because, as he claims he discovered the adulterous intercourse existing between defendant and the co-defendant, and was powerless to prevent it. In the following October the defendant herself leaving her parents living there, moved to Brooklyn, where it would seem she still resides, and it is in that city that the weekly allowance to her is claimed to be needed. From the record before us we are satisfied that the defendant could have remained in her own home with her parents, and with some exercise of economy could live comfortably upon her own annual income until the final judgment in this action should determine what her claim upon the plaintiff ought of right to be. And we are all of the opinion that the court at Special Term has not given sufficient consideration to that fact in fixing the amount which by the order appealed from it has awarded to her. We do not hold that because of that fact the court was without authority to award her any amount, but we do think that the amount awarded was much larger than, under the circumstances of this case, the defendant was entitled to. An award of ten dollars per week would abundantly supplement her own income and secure to her such support, and to the end that no mistake be made in that regard, instead of reversing the order, we modify it by reducing the amount to ten dollars instead of thirty dollars per week, and as so modified it is affirmed. All concurred.