
    Susan Elson Dye, Respondent, v. Joseph Ernest Dye, Appellant.
    First Department,
    October 21, 1910.
    Husband and wife — divorce — alimony pendente lite — proof of valid marriage essential.
    A wife suing for divorce will be denied counsel fees and alimony pendente lite where it appears that at the time of the marriage she was prohibited from marrying by a former decree of divorce rendered against her in this State, and the second husband to ber knowledge had a wife then living.
    Under such circumstances the plaintiff’s marriage was void ab initio, and a valid marriage is the basis of an order for alimony pendente lite.
    
    A plaintiff cannot base her right to alimony upon a common-law marriage where the complaint alleges only a ceremonial marriage and the parties have not been living together for over ten years prior to the action.'
    A plaintiff moving for counsel fees and alimony pendente lite is under the burden of showing the facts which entitle her thereto.
    Appeal by the defendant, Joseph Ernest Dye, from 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 9th day of July, 1910.
    
      William A. Boyd, for the appellant.
    
      Albert J. Graeffe, for the respondent.
   McLaughlin, J. :

Plaintiff brings this action for a divorce, alleging that she was married to the defendant at Jersey City, H. J., on the 13th of June, 1867. He appeals from an order awarding her $250 counsel fee and $15 a week alimony during the pendency of the action.

The. facts are not disputed that the plaintiff, prior to her alleged marriage to the defendant, was married to one Dukchart; that he brought an action against her in the Supreme Court of this State for divorce, on the ground of her.misconduct with the defendant in the present action, and on the 23d of October, 1865, recovered a judgment dissolving the marriage and forbidding her to again marry during his lifetime, and that he died in November, 1886. The papers used upon the motion also show that the defendant in this action, in 1863, married one Martha M. Spencer, who left him in 1865, and who died in 1883, never having been divorced. When the plaintiff’s acquaintance with the defendant commenced in 1864 or 1865 he was living with his wife. It is obvious from the plaintiff’s own affidavits that she knew they were married, and had no reason to believe, and did not believe, they were not lawfully married ; and, so far as appears, there was no ground for her believing two years later that the defendant’s wife was dead or that he was free to marry again ; indeed, she does not deny that she then knew that Martha'M. Spencer was alive. All she claims is that the defendant told her he was free to marry again, and she believed him.

At the time of the plaintiff’s alleged marriage to the defendant, therefore, she was prohibited from marrying by a judgment of this court obtained only two.years before, and the defendant had" a lawful wife, which fact must have been known to the plaintiff. Under such circumstances the alleged marriage to the defendant was void ab initio (Stokes v. Stokes, 198 N. Y. 301), and that being so the parties did not become husband and wife, and there was no basis whatever for the order appealed from. (Lake v. Lake, 194 N. Y. 179 ; Jones v. Brinsmade, 183 id: 258.)

An attempt was ajjparently made in the affidavits presented upon the motion to- prove a common-law marriage by showing that the parties continued to live together as husband and wife after the death of the plaintiff’s husband, and defendant’s wife. The com- • plaint," however, alleges only the ceremonial marriage, and it is significant, as bearing upon the relation between the parties, that they separated and have.not been living together since 1898.

Where an application is made for counsel fee and- alimony pendente lite the burden is upon the moving party to establish the facts which entitle her thereto. (Lake v. Lake, supra.) If there appears no probability that she will succeed in the action the application should be denied. (Desbrough v. Desbrough, 29 Hun, 592.) In the present case the plaintiff failed to sustain this burden, and from the facts presented there appears no probability that she will succeed in the action.

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  