
    Tillie B. Israel, Plaintiff, v. Abraham Israel, Defendant.
    (Supreme Court, New York Special Term,
    June, 1899.)
    Alimony and counsel fees — Befused in separation action, granted in absolute divorce.
    Alimony and counsel fees will be refused a wife in her action for a separation, but where her husband has brought a cross-action for an absolute divorce she may obtain such allowances therein where she denies on oath his charge of adultery.
    Gross-actions, one for divorce and the other for separation. Motion for alimony and counsel fee.
    Gruggenheimer, Untermyer & Marshall (Moses Weinman, of counsel), for motion.
    Hoadly, Lauterbach & Johnson (Eugene Treadwell, of counsel), opposed.
   Gildersleeve, J.

There are two actions — one by the wife, Tillie B. Israel, against her husband, Abraham Israel, for a separation on the ground of cruel and inhuman conduct, and the other, by the husband against the wife, for divorce on the ground of adultery. Alimony and counsel fee is asked in each case. In separation cases it is not my custom to allow alimony, for the reason that the police courts provide the wife with every means to compel her husband to furnish her with proper support and maintenance, and there is no reason why such applications should be made to the Supreme Court. I, therefore, deny the motion in the separation case, without costs and without prejudice to police remedies. As for the divorce case, in which the wife is defendant, the rule is that, where the wife denies on oath the charge of adultery, she will be allowed alimony and counsel fee, even though the husband submits affidavits in support of the charge, as so important a question should not be decided on conflicting affidavits, but should await the termination of the action; unless, indeed, the wife’s guilt appears established beyond all reasonable doubt. See Frickel v. Frickel, 4 Misc. Rep. 382; 24 N. Y. Supp. 483. In the case at bar the wife does deny, on oath, the charge, and' it cannot be said that her guilt is established beyond all reasonable doubt. The motion in the divorce case is, therefore, granted. The alimony is fixed at $30 a week, and the counsel fee at the sum of $200.

Ordered accordingly.  