
    Cora A. Kamman, Respondent, v. John H. Kamman, Appellant. (Action No. 1.)
    Fourth Department,
    March 26, 1915.
    Husband and wife — action for separation — dismissal of complaint — misconduct of plaintiff—judgment — provision that husband support wife — Code Civil Procedure, section 1766, construed — counsel fees.
    Where a wife brings action against her husband for separation upon the ground that it is unsafe and improper for her to cohabit with him, and after denying the charges he recriminates by alleging the plaintiff’s adultery as a counterclaim, and the court finds both parties at fault, it is proper to dismiss the complaint.
    Although section 1766 of the Code of Civil Procedure allows the court in an action for separation to render judgment compelling the defendant husband to make provision for the support of his wife where a separation is not granted, such decree can only be rendered where a separation could have been decreed on the evidence. It follows that where the wife’s complaint is dismissed on the ground that she herself is at fault, the decree should not contain a direction making provision for her support.
    
      An order directing the defendant in a matrimonial action to pay additional counsel fees should in terms make them payable to the wife, not to her attorney in person.
    Appeal by the defendant, John H. Kamman, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 4th day of January, 1915, directing him to pay an additional counsel fee of $J50 to plaintiff’s attorney in this action; also, an appeal from an order entered in said clerk’s office on the 3d day of February, 1915, in so far as it directs certain changes in the prior order and purports to direct defendant to amend his notice of appeal; also, an appeal by the defendant from part of a judgment herein entered in said clerk’s office on the 8th day of January, 1915, dismissing his complaint and the defendant’s' counterclaim upon the decision of the court after a trial at the Erie Equity Term.
    An appeal is taken from the judgment in so far as it purports to adjudge and provide that the dismissal of the complaint shall not in any manner relieve defendant from his obligation to support and maintain the plaintiff in a manner corresponding to his means and station in life.
    
      August Becker and J. Ralph Ulsh, for the appellant.
    
      Eugene M. Bartlett and James O. Moore, for the respondent.
   Per Curiam:

Each party charges the other with misconduct. The trial court finds that both parties are at fault and dismisses the complaint.

The plaintiff contends that defendant’s misconduct has been such as to make it unsafe and improper for her to cohabit with her husband, while the defendant denies these charges and alleges, by way of counterclaim, that his wife committed adultery, and asks that the marriage relation be dissolved.

The evidence has not been returned. We must, therefore, assume that the findings of fact are correct, and if so the complaint was properly dismissed. Neither party by appeal challenges the correctness of this disposition, except that the defendant contends that the provision in the judgment that the dismissal of the complaint “ shall not in any manner relieve the defendant from his obligations to support and maintain the plaintiff in a manner corresponding to his means and station in life,” should not have been incorporated in the judgment, and he appeals from that provision.

While section 1766 of the Code of Civil Procedure provides that the court may, in an action for separation, render a judgment compelling the defendant to make provision for the support of his wife, where, under the circumstances of the case, such a judgment is proper without rendering a judgment of separation, the Court of Appeals seems to have held (Davis v. Davis, 75 N. Y. 221; Ramsden v. Ramsden, 91 id. 281), as is pointed out in the opinion of the learned trial justice, that this provision applies only where a separation can be decreed upon the evidence; and it has been held in this case that the evidence was insufficient to make such a decree. If that is so it would seem that this provision should not have been incorporated in the judgment.

Another action has been brought by the plaintiff for separation since the dismissal of the complaint in this action, in which she complains of misconduct on the part of her husband occurring since the dismissal of this suit. (See Kamman v. Kamman, No. 2, 167 App. Div. 426.) What effect the findings and judgment of dismissal in this action may have upon the second suit can better be determined on the trial of the second action when all the facts and circumstances are before the court.

We are of the opinion that this provision should be stricken from the judgment.

As to the order directing additional counsel fee of $750, we think that order as well as the order correcting the clerical mistake of the clerk was- authorized and proper, except that the order for additional counsel fee should not have directed the payment thereof to a specified attorney for the plaintiff, but to the plaintiff herself.

The amount of the allowance was a question which was peculiarly for the judge before whom the action was being tried and who was familiar with all the-circumstances. We cannot say that the allowance was excessive.

The judgment should be modified by striking out that part thereof from which the appeal is taken; the order granting additional, counsel fee should be modified so as to require the payment to be made to the plaintiff instead of to her designated attorney, and the order correcting date of the order should be affirmed, all without costs.

All concurred.

Judgment modified by striking out that part thereof from which the appeal is taken, and as so modified affirmed, without costs. Order granting additional counsel fee modified so as to require the payment to be made to the plaintiff instead of to her designated attorney, and as so modified affirmed, without costs. Order correcting clerical mistake affirmed, without costs.  