
    Elizabeth Gray, Resp’t, v. James C. Gray, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1894.)
    
    Divorce—Alimony—Pendente lite.
    Where there is some competent evidence of defendant’s guilt in an action by a wife for divorce on ihe ground of adultery, she will be allowed alimony pendente lite.
    
    Appeal from an order directing payment of counsel fees and alimony pendente lite.
    
    
      Baldwin & Boston, for app’lt; Man & Man (Frederick li. Man, of counsel), for resp’t.
   Dyicman, J.

This is an appeal from an order in an action brought by the wife against her husband for an absolute divorce on the ground of adultery. By the order the defendant was directed to pay $250 for a counsel fee, and $100 a month for alimony. The order should be affirmed, on the opinion of the judge who made it, with $10 costs, and disbursements.

All concur.

The opinion of Mr. Justice Cullen at special term is as follows s While it may be that under § 1757, Code Civ. Proc., a party to an action for divorce can demand, as a matter of right, a jury trial on the issue of adultery only, still, under § 971, it is within the power of the court to direct that any issues be so tried. I shall therefore follow the ordinary practice, and direct that all the issues relating to that cause of action, whether raised by plaintiff or defendant, be submitted to the jury. The allegations relating to plaintiff’s desertion are immaterial on that cause of action, and their submission would only embarrass the trial of the other issues. The effect of the residence of the parties it is not necessary to consider or pass upon now. That can properly be left to any motion made on the verdict. As to the right of the plaintiff to alimony and counsel fees, this case is to be distinguished from the case of Langley v. Langley (not reported). Here there is some competent evidence of the defendant’s guilt, to wit, his admission that he-, had no defense to the suit. I am of the opinion that plaintiff shows she is without means of her own for support or maintenance of the suit. The fact that her mother will undoubtedly prevent her suffering does not relieve defendant from his liability, to be assumed by one upon whom it does not rest in law. The issues, as proposed, will stand. Alimony, $100 a month; counsel fee, $250,—allowed plaintiff.  