
    (4 Misc. Rep. 448.)
    WALSH v. WALSH.
    (Superior Court of Buffalo, General Term.
    July 14, 1893.)
    1. Temporary Altmony—Sufficiency op Evidence.
    Where, on the hearing of a motion for alimony pending an action by the wife for a divorce, defendant denies the marital relation, and the evidence is such that if the question were submitted to a jury, and they should find the existence of such relation, the court would have no difficulty in sustaining the verdict, an order directing defendant to pay alimony will not be disturbed.
    2. Same—Improper Evidence.
    Where, if so much of the evidence submitted in such case as is claimed to be inadmissible be eliminated, and what remains is sufficient to uphold the order for alimony, it will not be disturbed because such evidence was received.
    Appeal from special term.
    Action by Anna Walsh against Andrew J. Walsh for divorce. From an order directing defendant to pay alimony pending the action, he appeals.
    Affirmed.
    Argued before TITUS, O. J., and BATCH, J.
    Whitcher & Sawyer, for appellant.
    J. W. Russell, for respondent
   HATCH, J.

The complaint alleges that the parties were married at the city of Bradford, December 23, 1879, and continued thereafter to live together as husband and wife until December, 1890, when defendant, without cause, abandoned plaintiff, and has since refused to cohabit with or support her; demands judgment of separation and permanent support. The answer is a general denial of all the allegations of the complaint, excepting defendant’s residence. The issue presented upon the motion, and argued upon this appeal, relates to the existence of the marital relation. Ho formal ceremony of marriage was performed, but it is claimed that the parties, by agreement," constituted the relation, and immediately followed it up by cohabitation, which continued for nearly 10 years, during which time the parties were generally known by their acquaintances and society as husband and wife. As to the actual agreement of marriage, no proof appears in the record, except the aUegation of the complaint, duly verified, accompanied by affidavits of plaintiff, in which the aUegation is reiterated with detailed circumstances. The defendant, with equal stubbornness, denies the allegation of the complaint, and by affidavit, in detaU, denies the marriage, and those portions of the affidavits of plaintiff and others, which accompany it, tending to establish- that the parties were known or held out to be husband and wife. Upon this evidence the court was caUed on to consider and weigh how far the. acts of the parties themselves, and the attitude they assumed towards society, justified the inference of the existence of the marital, relation. The law of the case -is quite weH settled in this state, and the rule is the same in the state where it is alleged The marital tie was assumed. It is thus stated by Folger, J.:

“In an application for temporary alimony, *■ * * -although there may be in the answer a general denial of the existence at any time of the marital relation^ the court has the power, from the affidavits and other papers presented to it, to pass upon the question for the purposes of the application, and it is not bound down to the aUegation of the complaint and the denial of the answer, if other papers or proofs are submitted to it; and though the denial of the answer, if standing aloné, would bring the case within the rule that, where no marital relation is admitted or proven, there-is no right to .aUmony, yet if the matters contained in other papers, or shown by legitimate proofs, before the court, make out, in the judgment of tbe court; a fair presumption of a fact of marriage, it has the power to grant alimony pending the action, and expenses of the action.” Brinkley v. Brinkley, 50 N. Y. 194.

This rule was again reiterated■in Collins v. Collins, 71 N. Y. 273, 274, where it is again asserted “that it was not'necessary that the marriage be established as conclusively as would be required for the ultimate purposes of the action.”

There is little need of placing here the result of an- analysis. of the papers-and affidavits submitted upon* the-motion. It is sufficient now to say that if the questions presented were submitted to a jury, and they should find the existence of the marital relation, the court would have-no difficulty in supporting the verdict. This being the case, we can very well see that a case was presented for the court below to pass upon, and exercise its discretion in awarding or withholding alimony. The conclusion reached, we think, was justified by the papers submitted. •

Objection is made .that the photographic copies of the envelopes should not have been received. If this be.so, it does not appear from the record that the court took any action thereon. If it did, no exception was taken to the ruling, nor does it appear that the court made any ruling .thereon; and we are now unable to say whether, the court below considered them, or not, from anything appearing in the record. If they be entirely eliminated, there still remains evidence -sufficient, to uphold the order made. The order appealed from is affirmed, with $10 costs and disbursements.  