
    Almon G. Miller, Appellant, v. Bethel Anderson Miller, Respondent.
    Third Department,
    November 12, 1913.
    Husband and wife — divorce — counsel fees and alimony to complete trial and defend appeal.
    Where, in an action for divorce, the defendant denied the charge of adultery, and as a counterclaim asked for a separation on the ground of abandonment, and after the settlement of such issues the jury found for the defendant and the ease was held for the disposition of the other issues at a future time, and thereafter the plaintiff appealed from the order settling the issues, which appeal is still pending, and it appears that the plaintiff is contesting the case at every point, the defendant may be granted a reasonable allowance to enable her to complete the trial of the action and to defend the appeal, although prior to the trial she was granted counsel fees and alimony.
    Appeal by the plaintiff, Almon Gr. Miller, from an order of the Supreme Court, made at the Tompkins Special Term and entered in the office of the clerk of the county of Tompkins on the 29th day of May, 1913, awarding plaintiff the sum of $525 for counsel fees and expenses.
    
      Cobb, Cobb, McAllister & Feinberg [Fordyce A. Cobb of counsel], for the appellant.
    
      David M. Dean, for the respondent.
   Kellogg, J.:

In this action brought by the plaintiff to obtain a divorce from his wife on the ground of adultery she denied adultery upon her part and as a counterclaim asked for a separation on the ground of abandonment. On motion of the defendant an order was made settling the issues for a jury trial both as to the defendant’s adultery and as to the abandonment. The jury found with the defendant upon both issues, and the cáse was held for a disposition of the other issues at a future time. Thereafter the plaintiff appealed to the Appellate Division from the order settling the issues and that appeal is still undetermined. Before the trial the defendant, upon proof that the plaintiff had abandoned her and that she had prosecuted an action against him for moneys expended for her support and maintenance and had obtained a judgment therefor which was unpaid and which in supplementary proceedings she had been unable to collect, and that in support of herself and the prosecution of said action she had exhausted her entire income and property and had no means to carry on the action, obtained an order for $150 counsel fee and $5 per week alimony. After the appeal by the plaintiff the defendant applied to the court for an allowance of counsel fees and expenses, showing that she had expended $375 in the defense of the action up to that time, and had incurred for additional necessary disbursements, witness fees, traveling expenses and copies of record over $300, and that in order to complete the trial of the action it would require an expenditure of other sums of money for her to come to the place of trial with her witnesses, and in order to carry on said appeal it would be necessary to require additional sums of money for attorneys, counsel, traveling expenses and printing. She refers to and makes a part of the application the affidavits upon which the previous order for alimony and counsel fees was made. The order appealed from directs the plaintiff to pay $525 for counsel fees and expenses. The appeal is based upon the contention that the allowance is entirely for past services and expenses and the payment thereof is not necessary in order to enable the defendant to continue the action, but is to reimburse her for things already paid for or acquired on her credit.

In McCarthy v. McCarthy (137 N. Y. 500), where the findings were in favor of the wife and she had nothing to do but to enter judgment upon them, the court refused her an allowance to cover past expenses. The case, however, recognizes the right to apply for an allowance after an appeal taken for the purposes of the appeal, and also to cover any past expenses the payment of which might be necessary to enable the wife to protect her rights.

The plaintiff is evidently contesting the case at every point and the court could very properly make an allowance to cover the completion of the trial and the appeal from the order.. Considering the history of the litigation and the facts shown, a reasonable allowance is, therefore, proper to enable the defendant to complete the trial of the action and defend the appeal. Five hundred and twenty-five dollars seems a large allowance at this time. It seems probable that $300 would be ample. The order is, therefore, modified by reducing the allowance to that amount, and as modified affirmed, with costs.

All concurred.

Order modified by reducing allowance to $300, and as so modified affirmed, with $10 costs and disbursements.  