
    Frederica M. Poillon, Respondent, v. John James Herring Poillon, Appellant.
    
      Alimony—proof required to sustain an allowance pending an appeal—counsel fee for services already rendered — right to reply to affidavits which the court allows a moving party to read on a motion to supply the insufficiency of the papers served.
    
    ,-Iri order-to support -'an - award of alimony-to; a. wife, pending an appeal- by. her . -husband from-a judgment; granting her an absolute divorce and a reference upon the question of alimony, the wife must .establish both her inability to support, herself pending'such reference and appeal and the husband’s ability to pay alimony. • "- ' ■ ’ ■ • •
    
      In such a case the court has no power to award the plaintiff any sum for services previously rendered by her attorney upon the trial of the action, as the trial having taken place and the judgment having been rendered, payment-for such sérvices cannot be said to be necessary under section 1769 of the Code of Civil Procedure to enable the plaintiff to carry on the action.
    Where the moving affidavits, used upon the application for alimony, do not set forth the requisite facts, and the court, after the defect has been pointed out by the defendant’s counsel upon the argument of the motion, permits the plaintiff to serve a replying affidavit curing the omission, it is improper for the court to refuse to allow the defendant to file answering affidavits.
    Appeal by the defendant, John James Herring Poillon, 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 5th day of August, 1902, awarding the plaintiff alimony and counsel fees.
    
      Eugene Erayer, for the' appellant.
    
      Ed/warcl R. Finch, for the respondent.
   McLaughlin, J.:

This action was brought for an absolute divorce. The plaintiff succeeded upon the ' trial and judgment was thereafter entered dissolving the marriage contract and awarding the plaintiff $4,500 per year as alimony, unless the defendant elected at his own expense to go to a reference on the question of the amount of alimony. He did so elect and thereupon the matter was sent to a referee to take proof and report the same to the court. From the judgment defendant appealed, and after- such appeal had been taken the plaintiff moved, upon an affidavit made by her, the judgment roll and notice of appeal for an order allowing her temporary alimony pending the reference and appeal and for counsel fee. Upon the hearing of the motion the plaintiff 'was permitted, against defendant’s objection, to file an affidavit “in reply” to the one submitted by the defendant, and the defendant was denied the right to answer the samé. The motion was granted, and plaintiff was awarded $250 per month for temporary alimony until the permanent alimony should be determined and fixed, and $1,000 counsel fee for “ services and expenses upon the trial of the action and. upon the appeal taken by the defendant from the judgment.” From this order the defendant has appealed.

The papers upon which the motion was originally made were-insufficient to authorize the granting of any alimony, inasmuch as they failed to establish the wife’s inability to support herself pending the reference or appeal, or the husband’s ability to pay.These two facts must necessarily be established before any alimony -can be granted. (Code Civ. Proc. § 1769 ; Collins v. Collins, 80 N. Y. 13.) The defects in the moving papers having been pointed cut by defendant’s counsel upon the argument of the motion, permission was given to the plaintiff to put in a replying affidavit. ■ The affidavit was not, in fact, a replying affidavit, but was an •attempt to make out a ease, which had not been doné by the original papers, and the court should have so held and refused to receive the same, or, if received, should have allowed the defendant to ■answer the allegations therein contained and be heard thereon. He not only received the affidavit but refused to permit defendant to reply to it. Manifestly this was wrong and it does not need argument to demonstrate, it. It, in effect, deprived the defendant of his ■day in court. He has never been heard upon the real question .upon which the right to an award of alimony depended. When plaintiff applied for alimony the burden was upon her to establish the facts which entitled her to it. She had the affirmative of that issue and the defendant had the right of answer, and he could not legally be ■deprived of it. Sim had no right to reply under the settled rules.of practice and if a reply were accorded to her, it should have been restricted to new matter set up by defendant by Way of avoidance. If the practice here adopted were to prevail, it is not difficult to see how easy it would be to take property from one and give it to another, and the one from whom it was taken never have an opportunity to be heard upon the subject.

The order must also be reversed for another reason. The only authority for the granting of counsel, fee in actions for divorce is section 1769 of the Code. This section provides that the court may in its discretion, during the pendency of the action, require the husband to pay any sum of money necessary to enable the wife to carry on or defend the action. Where, as here, a trial lias been had arid judgment rendered, the payment of counsel fee to compensate an attorney for liis services previously rendered in procuring the judgment can in no sense be said to be necessary to enable .the plaintiff to carry on or defend the action, and yet the order here awards $1,000 t( as counsel fee for his services and expenses.upon the trial of the action and upon the appeal.” So much of the allowance as was made for the services of the attorney upon the trial was clearly unauthorized. (Beadleston v. Beadleston, 103 N. Y. 402; McCarthy v. McCarthy, 137 id. 500.)

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

Yak Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.

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