
    Frank H. Pettee, Resp’t, v. Mary H. Pettee, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed June 1, 1892.)
    
    Divorce—Almost.
    Where the defendant in an action for absolute divorce, while denying the adultery charged, does not deny the facts and circumstances alleged in plaintiff's affidavits which, if true, are inconsistent with defendant’s innocence, the decision of the special term denying alimony and counsel fee will not be disturbed.
    Appeal from order denying alimony and an allowance to the defendant in an action for an absolute divorce.
    The facts appear in the opinion at special term, as follows :
    Kellogg, J.—Temporary alimony pendente lite, counsel fees and money to defray the expenses of litigation to be furnished by the husband, is not one of the absolute rights of the wife in an action for divorce. No matter whether she be plaintiff or defendant, or whether the object be separation or divorce absolute. It is always a question in the discretion of the court whether or not to order the husband to make such provision, and it is to be determined upon principles of justice as the facts in each case are presented. The ecclesiastical courts claimed warrant for the exercise of this power from the fact that the rite of marriage gave to the husband the ownership of the wife’s property ; and since the wife was incapable of owning property during marriage it was only just that the husband should furnish not only maintenance to the wife pending the litigation, but should also furnish the means whereby she could make a reasonable defense .or might properly prosecute her action. But even in these courts the exercise of the power was discretionary, and never went to the extent of directing the husband to furnish money for the wife’s expenses in litigation, or even for maintenance pending the determination of the action, where the wife confessed the charges in the bill, or failed to deny the charges under oath. Though the same urgent reason does not prevail here, still the principle prevails in cases where the wife is shown not to possess or own sufficient means to maintain herself and to make her defense or to prosecute her action.
    In no case, however, will the power be exercised where the petition does not show a denial on the part of the wife of all charges; and where the charge is adultery by the wife, a denial under oath of the adulterous acts charged; or some grounds must be stated or some condition of facts shown which if true will defeat the husband’s action. There must be a presumption of innocence raised on the part of the wife, or facts shown otherwise constituting a defense.
    Of course the merits of the issues raised by the denials of the wife, or the truth of other facts constituting her defense, cannot be determined by affidavits. Courts will not presume to condemn the wife upon affidavits provided, she makes denial of the alleged criminating facts, when- opportunity is given her to do so. It is obvious if she admits the commission of adulterous acts where those are specifically and distinctly alleged, it is as fatal to her request for alimony as would be the confession of the charges in the bill, or the failure to answer at all a complaint charging adultery. It is equally obvious that if she has the opportunity to make denial of specific charges of adulterous acts, or is asked by the court to deny or explain such acts, and she fails to do so, they must be taken as confessed and -treated as admitted, and all the weight natural to such facts must be given them on the wife’s application to the discretionary powers of the court for aid to defend or for temporary alimony.
    The cases holding this principle are too numerous for citation. The principle indeed so commends itself to good sense and to exalted justice that court precedent could hardly make it more authoritative.
    The defendant in this case is charged with adultery with one Larry Owen. It is true that by her answer she denies the charge of adultery, and her answer is verified. In her petition for alimony' she refers to the fact that by her answer she has denied the adulterous acts alleged in the complaint. The affidavits opposing the motion show, among other matters, in substance, that on the night of the 18th of July, 1891, the defendant was discovered in bed with one Larry Owen. That the plaintiff and three or four other persons forced open her bed-room door, and saw the defendant in bed in the arms of Owen. That after some altercation she left the house on the arm of this paramour. The circumstances are given in the affidavits of four of the persons present with considerable detail. .After the reading of these affidavits the court directed that defendant have twenty days time to reply by affidavit denying or explaining these specific criminating facts alleged in these affidavits ' respecting the occurrence on the night of July 18th. At the expiration of the twenty days the defendant presented her affidavit setting forth that she had read the affidavits mentioned, and further alleging “that she did not have sexual intercourse with one Larry Owen, * * * on the 18th day of July, 1891, or at any other time.’’ This is simply a repetition of the allegations or denials contained in her-answer. She does not undertake to deny any of the facts she -was called upon to deny or explain. Ino other words she admits that they are all true as set forth in the affidavits, but she did not after all have “sexual intercourse” with Larry Owen. How these facts can be true and the defendant innocent of adultery is a paradox to the carnal mind. In purely spiritual ethics contacts of this character may be understood to comport with innocence, but the court is human and must be guided in its judgment by human standards applied to human nature. I think the defendant confesses the adultery in confessing herself guilty of the acts detailed in the affidavits, and therefore deny her petition for alimony and counsel fees.
    
      
      Waldo & McLaughlin (Chester B. McLaughlin, of counsel), for app’lt; S. II. Bevins (Francis A. Smith, of counsel), for resp’t.
   Math am, P. J.

The complaint in this action on information and belief charges the defendant with various acts of adultery. The answer denies the acts of adultery charged and is duly verified.

The verified petition denies the adultery charged and sets up the financial ability of the plaintiff to pay alimony, and her own absolute irnpecuniousness, neither of which are denied by the plaintiff. The affidavits of the plaintiff used on this motion tend .strongly to prove the adultery charged and detail circumstances which, if true, cannot well be reconciled with the innocence of the -defendant.

The circumstances set forth in these affidavits are not denied, but the defendant in an answering affidavit, filed by permission of the court, retiterates her denial of adultery.

But it is urged by the defendant that the affidavits on the part of the plaintiff prove too much; and that while they tend to establish the guilt of the defendant they also tend to establish conspiracy and connivance on the part of the plaintiff; that the fact that .all the alleged adulterous intercourse was at the house of the plaintiff’s mother, where the defendant visited with the consent of the plaintiff after he had his suspicions aroused by information of the alleged suspicious intimacy between the defendant and the alleged co-respondent, coupled with the fact that all or nearly all of the affiants are near relatives of the plaintiff, are circumstances of suspicion that justifies the court in requiring the payment of alimony and expense money so that the question may be tried upon the oral evidence of witnesses and not upon affidavits alone.

While these suggestions are not without some force, yet the fact remains that the learned judge at special term, after carefully considering all the questions involved, reached a conclusion in the exercise of his judicial discretion, that this was not a proper case for the allowance of alimony, or expenses. ■ The granting or refusing an allowance.of alimony and expenses during pendency of the action of divorce rests in the sound discretion of the court at special term, and the exercise of that discretion will not be interfered with on appeal, unless it has been clearly abused. Section 1769 provides that the court may in its discretion, during the pendency of the action, make and modify an order or orders requiring the husband to pay any sum or sums necessary to enable the wife to carry on or defend the action. It is true that in general if a wife who is sued for a divorce, in her answer either denies her guilt or sets up affirmative defenses, such as forgiveness or recrimination, counsel fee and alimony will be allowed her, unless the court is satisfied that she is altogether in the wrong or has no reasonable ground of defense, Clark v. Clark, 7 Robt., 284; Starkweather v. Starkweather, 29 Hun, 490; but when the special term reaches that conclusion from evidence which may reasonably justify it, the appellate court should not interfere with, the exercise of such discretion.

We cannot see that the discretion was abused in this case and think the order should be affirmed.

Order affirmed, without costs.

Putnam and Herrick, JJ., concur.  