
    Esther Jennie Johnson, Appellant, v. Wilbur C. Johnson, Respondent, Impleaded with John F. Carson, Defendant.
    Second Department,
    June 21, 1912.
    Husband and wife — counsel fees, when allowed — reformation of separation agreement.
    Although the necessity for granting counsel fees in an action affecting the marital relation must appear, the mere fact that the wife has some money or property under her control, even though it may be sufficient in amount to defray counsel fees if the whole were applied thereto, does not necessarily compel the denial of her application.
    As the granting of such an application depends upon equitable considerations, all the circumstances should be taken into consideration, not alone the amount of such money and property, but also the reasonably probable claims that may be made thereon, and, under certain circumstances, the source from which it was derived.
    Evidence examined, and held, that an allowance of counsel fees should be granted..
    Woodward, J., dissented.
    Appeal by the plaintiff, Esther Jennie Johnson, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of May, 1912, denying the plaintiff’s motion for counsel fees.
    
      E. Crosby Kindleberger, for the appellant.
    
      Henry Smith [James S. Darcy with him on the brief], for the respondent.
   Bure, J.:

The nature of this action is set forth in the opinion of this court upon the previous appeal. (Johnson v. Johnson, 150 App. Div. 306.) Inasmuch as the order then reviewed, which denied plaintiff’s application for a counsel fee to enable her to maintain this action, was based upon a supposed want of power, when the order was reversed the- proceedings were remitted to the Special Term of this court to consider the merits. From an order denying plaintiff’s application upon the merits this appeal comes.

To justify a court in requiring a husband to pay to his' wife a sum of money to enable her to carry on or defend an action between them affecting the marriage relation, the necessity therefor must appear. (Osgood v. Osgood, 2 Paige, 621; Rose v. Rose, 11 id. 166; Collins v. Collins, 80 N. Y. 1; Lake v. Lake, 194 id. 179.) If a wife has money under her control which she is entitled to use for that purpose, which- is sufficient to carry on or defend such action, the settled principles of equity will not permit the court to direct the husband to pay to her any further sums of money for such purpose. (Lake v. Lake, supra.) But the mere fact that she has some money or property under her control, even though it may be sufficient in amount to defray counsel fees if the whole were applied thereto, should not necessarily compel the denial of -her application. As the granting or withholding of an order requiring payment by the husband depends upon, equitable considerations (Collins v. Collins, supra), all the circumstances should be taken into consideration, not alone' the' amount of such money and property, but also the reasonably probable claims that may be made thereon, and under certain circumstances the source from which it was derived. (Waterman v. Waterman, 147 App. Div. 464; Earle v. Earle, Id. 930; Merritt v. Merritt, 99 N. Y. 643.) Plaintiff avers concerning her property that of principal she has $3,000 on deposit in one savings bank and. $400 in another; the greater portion of which she received from her mother’s estate. Besides this she has furniture, including an old piano, worth altogether not to exceed $275 in value.. Her statement that this comprises all of her property is not disputed by defendant. Her income consists of the allowance paid to her by her husband under the separation agreement which is the subject of this action, amounting to $1,300 a year, and the interest on her savings bank deposits, amounting to about $120 a year. Her statement as to the amoWt of her income is not disputed, except that defendant alleges that she earns some money by giving music lessons. This statement plaintiff denies. Out of her income she pays $300 a year for the rent of the apartment occupied by herself and her daughter, now about fifteen years of age, the sole surviving issue of her marriage with defendant, and provides food and clothing for both. It is not difficult to believe her statement that it is only by the strictest economy that she is able to meet her household expenses and the bills for clothing herself and her daughter. It is apparent that without encroaching upon her principal she has no means with which to compensate her counsel, who assert that up to this time they have been paid nothing for then’ services. Plaintiff asserts with regard to defendant’s capital that he owns a seat upon the New York Cotton Exchange of the value of nearly $20,000, and has capital invested in his business to an amount unknown to her, and owns real estate at Ridgewood, N. J., and at Johnson Point, N. Y.; that he also owns an automobile, and a sailing yacht over fifty feet in length, which is in commission in the summer time. Defendant admits the ownership of a seat on the Cotton Exchange, but alleges that its value does not exceed $14,500. He admits that he has some capital invested, in his business, but neglects to inform the court as to the amount thereof. He admits that he owns land at Johnson Point and at River Edge (not Ridgewood), N. J. He states that the latter is of small value, and that he has unsuccessfully attempted to sell it for $350; and he asserts that the land at Jóhnson Point. is worthless. He admits that he owns and operates an automobile, and a yacht which, however, is only thirty-six feet long instead of fifty feet, as alleged by plaintiff. Without specifying the'items, he avers that the sum total of all his possessions does not exceed in value about $20,000. With regard to his income, plaintiff asserts that his business yields him from $10,000 to $15,000 a year. Defendant denies that it equals this sum, but omits to state what his average profits from his business amount to, although he does state that in some years he does not clear the amount which he pays to plaintiff under the separation agreement. With regard to his manner of life, plaintiff asserts that defendant belongs to three clubs, dresses handsomely, entertains lavishly, travels to some extent, and in 1910 went upon a trip around the world, remaining away for about eight months, at an estimated expense of at least $6,000. Defendant, admitting membership in the clubs, asserts that the dues are small, admits that he dresses well, entertains and travels to some extent, but not extravagantly; and while admitting that he did take a trip around the' world, asserts that it was “partly business,” and denies that it cost him the sum stated by plaintiff. He omits to state how much he did expend on this occasion, nor is there any specific statement either as to the amount of his income or of his annual expenditures.

Under such circumstances is plaintiff called upon to diminish the comparatively small sum which she has on deposit in the savings banks in order to pay her' counsel for services rendered in this action % We think not. In view of the fact that plaintiff’s principal is small in amount, and if sickness should overtake either herself or her daughter, or accident befall either, it would doubtless be necessary to make use of a portion thereof to defray expenses in connection therewith; in view of the fact that defendant’s principal is concededly many times as great as that of plaintiff, taking into consideration the fact that his manner of living is much more luxurious and expensive than that possible to plaintiff and her daughter, and in view of the unsatisfactory character of his denial as to the amount of his income, we think that a case is presented where it is “ necessary ” that the husband should pay the wife’s expenses of this litigation. We think that the order should. be reversed, with ten dollars costs and disbursements, and the motion granted; and, following the practice adopted in Vincent v. Vincent (150 App. Div. 912), we fix the amount of the counsel fee at three hundred and fifty dollars.

Thomas and Rich, JJ., concurred; Woodward, J., dissented; Jenks, P. J., not voting.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, and counsel fee fixed at the sum of three hundred and fifty dollars.  