Opinion
February 18, 1971
Appeal from the Erie Special Term.
Present — Goldman, P.J., Marsh, Witmer, Gabrielli and Moule, JJ.
Order unanimously reversed, without costs, and motion denied, without prejudice to defendant's right to renew her motion, if so advised upon the trial of this action. Memorandum: This appeal is from an order awarding counsel fees pending an annulment action brought pursuant to subdivision (c) of section 140 Dom. Rel. of the Domestic Relations Law. Provisions for the payment of counsel fees by the person or persons maintaining the action, to the wife to enable her to defend the action, are contained in section 237 Dom. Rel. of the Domestic Relations Law. While under that section proof of probability of success and financial need is not an absolute prerequisite to obtaining relief, the court in exercising its discretion should consider the relative merits of the parties and their respective financial situations (see Martin v. Martin, 28 A.D.2d 897). The affidavits submitted by defendant contain mere conclusory allegations of a "meritorious" and "adequate" defense and they fail to set forth any factual showing to establish her "need" for an award of counsel fees. Under such circumstances the award of counsel fees was an improvident exercise of the court's discretion. If so advised, the defendant may renew her application upon the trial, at which time the trial court will be better able to assess the value of the service necessarily rendered, the relative merits of the parties and their respective financial situations (see Goldstein v. Goldstein, 35 A.D.2d 777).