
    Bernard Cohen, Plaintiff, v. Carrie Cohen, Defendant.
    (New York Common Pleas—Special Term,
    March, 1895.)
    A wife is entitled to án allowance for counsel fees to enable her to defend an action of divorce where she denies on oath the charges made against her, even though the affidavits on the part of the husband show her guilt. . • .
    Poverty of the husband is no' defense to an application for counsel fees in such a case, ' ,
    . Motion by the defendant for an allowance of counsel fees to enable her to defend the action.
    
      Joseph I. Green, for motion.
    
      William N. Loew, opposed.
   Giegerich, J.

This is an application by .the wife for counsel fees to enable her to defend the action,, which is brought by the husband for a divorce on the ground of adultery.

Where the wife denies, on oath, the, charge, she .is entitled to such allowance,.even though the’ affidavits, read oil the part of the húsband show her guilt (Osgood v. Osgood, 2 Paige, 621.; Hallock v. Hallock, 4 How. Pr. 160; Frickel v. Frickel, 4 Misc. Rep. 382; 24 N. Y. Supp. 483); “ unless,” as- was said by Judge Gildebsleeve in the case last cited, “it appears clear beyond reasonable doubt that the ultimate success of the husband in the litigation is inevitable.”

The defendant takes oath in denial of the charges, and in view of this denial and of the allegations contained in her moving affidavit, although the latter are very vague in character, there is no justification, under the authorities, for deciding the question of her guilt upon such conflicting affidavits. Leslie v. Leslie, 6 Abb. Pr. (N. S.) 193 ; Frickel v. Frickel, supra ; Hallock v. Hallock, supra.

A careful consideration of the papers submitted satisfies me that the plaintiff is absolutely without means; but his poverty is no defense to the application. Hallock v. Hallock, supra ; Frickel v. Frickel, supra. He must, in an action of this character, either furnish the wife with money to enable her to make her defense or abandon the action. Purcell v. Purcell, 3 Edw. Ch. 194. Great injustice might be done if the husband were not compelled to furnish to his' wife the means of having so important a question of fact as is involved in this action decided in the usual manner. Hallock v. Hallock, supra.

It is proper, however, to take into consideration the pecuniary ability of the husband and the circumstances in life of the parties in fixing the amount of the allowance. Hallock v. Hallock, supra. Erom a consideration of these matters, as well as of the facts and circumstances of the case as disclosed by the papers submitted upon this motion, I am of the opinion that the defendant should have a counsel fee of twenty-five dollars to defend the action, which the plaintiff should pay within five days after the entry of the order.

Motion granted.  