
    Max Greenberg, Appellant, v. Rose Greenberg, Respondent.
    First Department,
    November 12, 1909.
    Husband and wife — divorce — application for alimony pending appeal —moving papers.
    Where a wife appeals from a judgment of divorce, her motion for alimony and counsel fees pending the appeal will not be granted unless it is shown that the appeal has been taken in good faith and that there is reasonable ground to believe it will be successful.
    The motion should be made on a case, and an affidavit that appellant is informed by her attorney that her defense was established is insufficient to justify the order.'
    Clarke, J., dissented.
    
      Appeal by the plaintiff, Max Greenberg, from that part of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of September, 1909, which directs him to pay alimony to the defendant pending her appeal from an interlocutory judgment of divorce theretofore entered in favor of the plaintiff.
    
      I. N. Jacobson, for the appellant.
    
      W. A. Purrington, for the respondent.
   Laughlin, J.:

This is an action for a divorce. The issues with respect to the adultery charged in the complaint were duly framed and duly tried before the court and a jury and a verdict was rendered thereon in favor of the plaintiff. Upon the trial of those issues the defendant defaulted. Her default has not been opened, nor has she moved to open the same. She, therefore, stands convicted of the charges of misconduct and this gives the plaintiff the right to a decree unless he has condoned the offense. She appeared on the application for judgment on the findings of the jury and offered evidence tending to show that the plaintiff had condoned her acts by voluntarily cohabiting with her with knowledge thereof. On that issue the court found in favor of the plaintiff, and since she defaulted on the trial of the issues before the jury the review on the appeal will necessarily be confined to the single question as to whether or not the plaintiff has condoned her misconduct. The motion for alimony, pending her appeal from the interlocutory judgment, was based on an affidavit made by herself and certain certificates of her physician with respect to her health and an affidavit made by her attorney. The motion was not made on a case and it appears that the case had not then been served. The only evidence presented by the moving papers tending to show the probability of the success of the appeal is contained in the affidavit of the defendant, in which she states that she is informed by her attorney and counsel that in their jirdgment her defense of condonation, as well as those entitling her to a decree of separation were established by uncontradicted testimony, and that she is informed by them that in their judgment the interlocutory decree will be reversed. The justice .presiding at the Special Term when the order was made neither presided at the jury trial nor at the Special Term when the interlocutory judgment was granted.

The court doubtless has jurisdiction to award alimony, as well as counsel fees and printing expenses, to a wife pending appeal from a judgment either in her favor or against her in an action for a divorce, but, when she is appellant, it must be made to appear that the appeal had been taken in good faith and that there is reasonable ground to believe that it will be successful. (Halsted v. Halsted, 11 Misc. Rep. 592, and cases cited; affd., 1 App. Div. 634; Stanford v. Stanford, 1 Edw. Ch. 317; Lusk v. Lusk, 31 Misc. Rep. 312; Haddock v. Haddock, 75 App. Div. 565; S. C., 109 id. 502. See, also, McBride v. McBride, 55 Hun, 401, and Stearns v. Stearns, 33 App. Div. 630.) The motion therefor, however, should be made on a case, and the court should not attempt to determine the question as to whether there be any merit in the appeal on affidavits. (Gansz v. Gansz, 59 N. Y. Supp. 955.) The wife is not entitled to alimony as of course in a matrimonial action, and although the court will not determine the merits of the action on a motion for alimony, she is required to present evidence tending to show that she has a meritorious cause of action or defense. (Stearns v. Stearns, supra; Collins v. Collins, 71 N. Y. 269; Masey v. Masey, 58 App. Div. 619; Lake v. Lake, 194 N. Y. 179.) We are of opinion, therefore, that the moving papers were insufficient to enable the court to determine whether or not there is merit in the defendant’s appeal, and that the award of alimony was unauthorized.

It follows that the order should be reversed, without costs, and motion denied, without costs.

Ingraham, Houghton and Scott, JJ., Concurred; Clarke, J., dissented.

Order reversed and motion denied, without costs.  