
    FOWLER a. FOWLER.
    
      Supreme Court, First District;
    
    
      Special Term, May, 1857.
    
    Divorce.—Allowance to Wife to maintain Suit.
    Upon a reference to inquire and ascertain the amount which should be allowed to a wife for maintaining her suit for divorce, and for support of herself and child meanwhile, it is not necessary that she prove her case upon the merits; and proof of her misconduct is admissible only to show that it was so glaring that no aid should be given her to prosecute the suit.
    The delay of the wife in prosecuting her suit will be a ground for discontinuing her allowance.
    Motion to confirm report of referee.
   Mitchell, J.

—The charges made by the defendant against Dr. M. are entirely unsustained; so far as there is any evidence on the subject, they are disproved. She is now boarding at his house, and it seems to be a suitable place : it is probable the plaintiff is of a violent temper and difficult to be pleased, and that it is not easy for her to find persons who may be willing to board her. The last is a reason why she should be allowed to remain in any suitable place that she selects.

On this reference it was not necessary for the plaintiff to prove her case on the merits. The defendant could prove her misconduct only with a view to show that it was so glaring that no aid should be given to her to prosecute her suit, or if she had been charged with adultery, and were still living with the partner of- her guilt. But a charge of former misconduct, or proof of it, does not deprive her of the right to the means of supporting herself and her child during the litigation, and of means to sustain the suit.

It may, with such proof as there is here, be a reason for making both very moderate. The referee allows $35 for counsel fee— that is moderate; but under the circumstances now proved should not be increased, unless a different state of facts should appear.

The same circumstances make it proper that a very moderate sum be allowed for her support: she seems to have been the cause of the final separation between her and her husband. The referee allows her $8 a week, payable weekly. Considering her conduct and the husband’s probable ability; let it be $28 per month, payable monthly, from 24th of March last. The defendant having answered, cannot now object to the uncertainty of the complaint.

If counsel accept the above sum, it will be with the understanding that they are to continue the suit without further in crease of it until a trial shall take place, provided the defendant consent to aid in expediting the cause.

If the plaintiff should delay the cause, that also will be ground for discontinuing the allowance. This is not like the cases in 2 Barb. Ch. R. and 3 Edwards, where it distinctly appears that the plaintiff could not sustain her cause. There may be evidence of his misconduct, as there seems to be of hers. 
      
       Jones v, Jones, 2 Barb. Ch. R., 146; Worden v. Worden, 3 Edw. Ch. R., 387.
     