Opinion
December, 1903.
Order reversed, with ten dollars costs and disbursements, and motion granted as indicated in opinion, with ten dollars costs.
This is an appeal from an order denying the plaintiff's motion for alimony and counsel fee in an action for a judicial separation. The plaintiff seeks relief, on the ground of cruel and inhuman treatment by her husband, which renders it unsafe for her to continue living with him. She sets forth in an affidavit that she has no money or means to maintain either herself or her children, or to pay counsel. The motion was denied by the court below, as would appear from the opinion, on the ground that the plaintiff had not made out a clear case entitling her to relief. On a perusal of the affidavits read on behalf of the plaintiff on the motion, sufficient appears in support of the charges to entitle her to a trial, and in the meantime, as she is without means, we think it is a proper case in which to allow her a moderate amount pending the suit for the maintenance, at least, of the three children who are in her charge and who, because of their infancy, require the care and attention of their mother. The defendant is a sergeant of police in receipt of an annual income of $2,000. It is his duty to support his children, and, we think, an allowance of ten dollars a week should have been made to the plaintiff for that purpose. We are also of the opinion that a moderate counsel fee of fifty dollars should be allowed, in order that the plaintiff may have her case presented to the court. The order should be reversed, with ten dollars costs and disbursements, and the motion granted as above indicated, with ten dollars costs. Van Brunt, P.J., O'Brien, McLaughlin and Laughlin, JJ., concurred.