
    Moses Oppenheimer, Respondent, v. Julia Oppenheimer, Appellant.
    First Department,
    December 8, 1912.
    Husband and wife—action for annulment of marriage — alimony.
    Where a husband sues his wife for an annulment of the marriage upon the ground of her physical incapacity to enter the marriage state, the wife, having denied the allegations of the complaint, is entitled to alimony pendente lite.
    
    Appeal by the defendant, Julia Oppenheimer, from so much of an order of the Supreme Court, made at- the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of October, 1912, as denies to the defendant alimony pendente lite.
    
    
      
      Alfred D. Lind of counsel [Goldfogle, Cohn & Lind, attorneys], for the appellant.
    
      John J. Weiss of counsel [Henry C. Neuwirth, attorney], for the respondent.
   Clarke, J.:

This is an action brought by the husband for the annulment of a marriage. The complaint alleges that on the 7th of September, 1910, the plaintiff was married to the defendant; that on said date and ever since the defendant was and has remained physically incapable of entering into the married state or of consummating said marriage by reason of personal defects and physical infirmities which are of an incurable nature and were unknown to the plaintiff at the time of contracting said marriage. The verified answer admits the marriage and denies the other material allegations of the complaint.

In her affidavit upon the motion for alimony and counsel fees the defendant avers: There is absolutely not a shred of truth in the plaintiff’s allegations on which he bases this action and I submit herewith my verified answer to the complaint denying all such allegations. * * * I was married to the plaintiff in September, 1910, and we remained together until October, 1911, when the plaintiff deserted and abandoned me and from the beginning of the present year he has not contributed a single penny towards my support and I have been compelled to earn my own living as best as I could.” The order made thereon allowed $100 counsel fee but denied the application for alimony.

In Higgins v. Sharp (164 N. Y. 4) the Appellate Division certified the following question to the Court of Appeals: Has the Supreme' Court in an action against a wife to annul a ceremonial marriage, in which action the wife by her answer-only asserts the validity of the marriage, power to grant alimony and counsel fee pendente lite ? ” After an examination of the cases the unanimous decision of the court was: “ This is a case where the defendant has put in issue all the material allegations of the complaint and where she stands to defend her rights as the plaintiff’s wife. Her application was, therefore, addressed to the sound discretion of the court, and the order cannot be questioned for want of power' in the court to make it. The order should be affirmed, with costs, and the . question certified answered in the affirmative.”

We think, upon this record, the order appealed from should be modified by granting alimony pendente lit'e at the rate of seven dollars per week, and as so modified affirmed, with costs and disbursements to the appellant upon this appeal.

Ingraham, P. J., McLaughlin, Scott and Dowling, JJ.,. concurred.

Order modified as directed in opinion and as modified affirmed, with ten dollars costs and disbursements to appellant.  