
    Louis Grobart, petitioner-appellant, v. Bessie Grobart, defendant-respondent.
    [Submitted May 20th, 1947.
    Decided September 25th, 1947.]
    
      Mr. William W. Evans, for the appellant.
    
      Mr. Alex. Simpson, for the respondent.
   The opinion of the court was delivered by

Colie, J.

This appeal seeks a reversal of an order of the Chancellor directing the appellant to pay a counsel fee of $750 to the solicitor of .the respondent. Louis Grobart filed a petition for divorce, charging his wife, Bessie Grobart, with adultery. The cause went to final hearing and resulted in a decree of dismissal grounded on failure of the husband’s proof of adultery. Thereafter the Advisory Master heard the parties on the wife’s application for counsel fee in the divorce proceeding and advised the order under'appeal.

Appellant urges that the proofs before the Advisory Master disclosed a situation clearly indicating that the wife was more capable of paying her counsel than was the husband. The question of costs and counsel fees in divorce actions is one within the discretion of the Chancellor. Harris v. Harris, 70 N. J. Eq. 586. In light of the failure of the husband to establish the fact of adultery and the further fact that an affidavit filed by the wife set forth that she was unable to earn mone}’and was seriously ill and in need of constant medical care, we can see no basis for contention that the court below abused its discretion. Appellant seeks a reversal on the further ground that the respondent had during the pendency of the divorce action released, by written instrument under seal, the appellant “from my right to demand, request or receive from the said Louis Grobart, airy money, alimony, pendente or final, suit money, counsel fees, or any other thing of value, for or on account of any suit or action now pending, or to be hereafter instituted by either the said Louis Grobart or me, affecting or attempting to affect our marriage status or my support and maintenance.” This instrument, given as it was in connection with the settlement of certain rights of the wife, did not bind the court below in awarding counsel fees. Lister v. Lister, 86 N. J. Eq. 30; O’Hara v. O’Hara, 137 N. J. Eq. 369.

The order under review is affirmed, with costs.

For affirmance — Ti-ie Chibe-Justice, Bodine, Donges, Heher, Colie, Wacheneeld, Eastwood, Burling, Wells, Dill, Freund, MoGeehan, McLean, Schettino, JJ. 14.

For reversal — None.  