
    Mary Wood, Plaintiff, v. James Wood, Defendant.
    (Supreme Court, New York Special Term,
    December, 1899.)
    Separation — Alimony and counsel fees.
    Alimony and counsel fees will be allowed a "wife, in her action brought to procure a separation, where prior applications made by her to Police Courts for her necessary support have proved unavailing, and she is not presently living with her husband and cannot properly do so.
    Motion for alimony and counsel fee in a suit for a separation.
    J. B. Lockwood, for motion.
    G. H. Hart, opposed.
   Gildersleeve, J.

The motion is for alimony and counsel fee in a separation case brought by the wife against the husband. The facts appear to be as follows, viz.: The wife brought a former action for a divorce on the ground of adultery. Tha action, was tried before Mr. Justice Beekman, and the complaint dismissed for insufficient proof of defendant’s adultery. The wife then brought this action for a separation on the ground of cruel and inhuman treatment, consisting of abusive language, threats and insufficient support, and also of neglect of plaintiff in her illness. The plaintiff claims that the defendant earns one hundred dollars a month, while the defendant asserts that he only earns eighteen dollars a week. He is an engineer on the elevated railroad in this city. The plaintiff has applied several times to the Police Courts, and the defendant has been ordered to contribute in various sums to plaintiff’s support. Subsequently the parties went to live together again, and the orders of the Police Courts ceased to be effective. The plaintiff went afterwards to live with her daughter, as she was unable to get on with her husband, and the husband for some time continued to send five dollars a week to the daughter, but has now ceased to do so, and no arrangement at present appears to be in force for the support of the plaintiff. Proof is also produced to the effect that plaintiff is in very bad health and is in need of assistance. As a general rule, I think that applications for alimony in separation cases, where the wife is the plaintiff, should be made to the Police Courts, which- are abundantly provided with means to make the husband properly contribute to the support of his wife, while the counsel fee might await the result of the action, as the attorney can maintain an action against the husband for services rendered to the wife -in a separation case. See Maumer v. Gray, 28 App. Div. 529. There are, however, exceptional cases where the application can better be addressed to the Supreme Court. I think this is one of them. The plaintiff has already made several attempts to have the matter of her support satisfactorily determined in the Police Courts, and the last time the court appears to have refused to give her any support for the reason that her husband offered her a home. She claims that the home was not suited to one in her delicate health. Besides which, the commencement of this action for a separation renders it impossible for her to live with her husband. I am of opinion that the plaintiff should have six dollars a week alimony and a counsel fee of twenty-five dollars.

Ordered accordingly.  