
    Grace E. Van A. Waterman, Respondent, v. Theodore H. Waterman, Appellant.
    Third Department,
    November 15, 1911.
    Husband and wife — separation — counsel fee where wife possesses '. independent means.
    Where in an action brought by a wife for separation the husband inter-" poses a counterclaim alleging misconduct of the wife, and demands a judgment of separation from her, the fact that the wife has a life interest in her father’s estate from which she derives an income of $150 per month,- and an income from securities owned by her amounting to $500 or $600 a year, does not render it an abuse of discretion for the court to grant her án allowance of $500 counsel fees, when it appears that the husband is the owner of real estate assessed at $140,000, and has a large income and business, maintains two automobiles, and that the plaintiff is a woman of high social position, and'has been accustomed all her life to a standard of living which she cannot sustain on the private income which she receives.
    Appeal by the defendant, Theodore H. Waterman, from so much of an order of the Supreme Court, made at the Columbia Special Term and entered in the office of the clerk of the county of Albany on the.5th day of July, 1911, resettling a former order entered in said clerk’s office on the 23d day of June, 1911, as allows plaintiff $500 counsel fees in an action for separation.
    
      
      William E. Woollard and Michael D. Reilly, for the appellant.
    
      Charles J. Buchanan [Sherman A. Murphy of counsel], for the respondent,
   Kellogg, J.:

The appeal is based upon the theory that the plaintiff having ample means of her own, the court has not power in an action for separation to grant her counsel fees, and Lake v. Lake (194 N. Y. 179) is relied upon as sustaining that contention. The affidavits disagree as to the means and income of the parties, but we. must assume that the court, in exercising its discretion has found the facts favorable to the plaintiff. We may, therefore, assume that the plaintiff has an income from her father’s estate of $150 per month. Upon her death the fund from which the income is derived goes to her children. She also has an income from securities owned by her amounting to $500 or $600 a year. The husband is the owner of real estate assessed at $140,000, is engaged in the grain business and has a large business and a large income and maintains two automobilés. When living together and maintaining the family in the family residence the family expenses were nearly $15,000 per year. The plaintiff is a woman of refinement and of high social position, and has been accustomed all of her life, both before and during her marriage, to a -standard of living which she cannot sustain on the income which she receives. She has been accustomed to the services of several servants and to living in a-large and well-furnished house. The defendant’s answer, by an alleged counterclaim, alleges misconduct against the plaintiff and asks a judgment of separation from her. The plaintiff is, therefore, before the court to prosecute her action and to defend against the alleged cause of action against her.

In granting the order the court must have determined, within the Lake case, that the allowance was necessary to enable the plaintiff to prosecute or defend the action. Under section 1769 of the Code of Civil Procedure, in addition to the. moneys necessary to prosecute or defend the action, the defendant may be required to provide suitably for the children and for the support of the wife, “having regard to the circumstances of the respective parties.” A broad discretion is left with the Special Term. • The income and property of the plaintiff is such that the average woman would not find.it necessary to have other provision made for her to enable her to prosecute such action. But the facts show that the plaintiff can barely live upon What she gets; that her method of living, both before and after marriage, has surrounded her with such necessities that her income is not as large, having regard to her circumstances and surroundings, as it would at first sight-seem to be. The parties apparently are of high social standing and have lived during their married life as people having large means, and in order to prosecute her action the Special Term may have properly considered that it was not necessary for the plaintiff to change the manner in' which she had. lived before and during her marriage. We cannot, "therefore, say that it was abuse of discretion to grant the allowance.

Under all the circumstances, considering the means and standing of the parties, we cannot say that the allowance is improper or that the Special Term abused its discretion in determining that it wás necessary for the plaintiff in order to prosecute her action and to defend against the alleged cause of action of the

defendant. The order is, therefore, affirmed, with costs,

All concurred.

Order affirmed, with ten dollars costs and disbursements.  