
    Mary E. Bressette, Respondent, v. George H. Bressette, Appellant.
    
      Alimony and counsel fee in an action for a separation—when they are excessive— right to impose a condition that the wife be allowed to remain in the husband’s house — objection thereto cannot be first presented on appeal.
    
    A woman who had brought an action against her husband to obtain a separation on the ground of abandonment made a motion for an order requiring the defendant to pay alimony and counsel fees pendente lite.
    
    Since the alleged abandonment the wife had been occupying premises owned by the husband, who was paying the charges thereon for taxes, etc., which amounted to $805 annually. The motion resulted in an .order requiring the defendant to pay a counsel fee of §250 and temporary alimony at the rate of §20 per week. The order also provided that the allowance of alimony was made upon the understanding that the plaintiff should continue to have the use of the premises referred to, and that if the defendant did not pay the charges thereon or prevented the plaintiff from living quietly and peaceably therein, application might be made for an increase of alimony or for other relief.
    There had been no issue of the marriage, and the defendant, whose income was §5,000 per annum, was obliged to support his aged mother and contribute to the support of his sister. The allowance of alimony amounted to nearly thirty-seven per cent of the defendant’s annual income.
    
      Held, that the defendant should only be required to pay the plaintiff the sum of ten dollars weekly, and that the provision in relation to the occupancy of the house should remain unchanged;
    That while the court was without power to direct that the plaintiff should have the use of the house or to adjudge any penalty upon the defendant in case he failed to pay the charges thereon, or prevented the plaintiff from living peaceably and quietly therein, the defendant, having failed to raise this objection upon a motion for a resettlement of the order, or upon an application for a reargument of the motion, was precluded from raising it upon appeal;
    That as it appeared that the defendant had suffered default in pleading, and that the case would apparently not be contested, the allowance for counsel'fee should be reduced to §100.
    Appeal by the defendant, George JEL. Bressette, from, an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of March, 1904, awarding alimony and. counsel fees to the plaintiff, and also from an order entered in said clerk’s office on the 9th day of March, 1904, denying the defendant’s motion for a reargument of the motion for alimony and counsel fees.
    
      
      Ira Leo Bamberger, for the appellant.
    
      Charles H, Hyde, for the respondent.
   Hooker, J.:

The action is for separation on the ground of abandonment, and the summons is dated the 19th day of December, 1903. By an order to show cause, served the 22d day of December, 1903, a motion was made by-the plaintiff to require the defendant to pay a counsel fee to enable her to carry on the action, and a reasonable sum for her support and maintenance during the pendency thereof.. Pending the decision of the motion, which was held to permit the plaintiff to submit an affidavit in reply to the defendant’s answering statements, the latter suffered default in pleading; the motion resulted in an order requiring defendant to pay a counsel fee of $250 to enable the plaintiff to carry on this action, and temporary alimony of $20 per week; and further provided that “ the above allowance for support and maintenance is made upon the understanding that the plaintiff shall continue to have the use of the said house at 92nd street and First avenue, Brooklyn, and should the defendant fail to pay the interest and other charges thereon, or by any act or omission prevent the plaintiff living quietly and peacefully therein during the pendency of this action, application may be made to me for increase of alimony, or for such relief as may be proper.”

The defendant does not appear to have moved to resettle the order, but did seek a reargument of the motion on the ground that the learned court below misapprehended the facts, and on. the ground that he is financially unable to comply with the provisions of the order. From the original order and the order denying his motion for reargument, the defendant has appealed to this court.

The statements in the affidavit in support of the motion contain no positive proof of the income of the defendant; it is there alleged upon information and belief, without stating the sources of affiant’s information or the. grounds of her belief, and without supplying, other proof by affidavit or otherwise than the affidavit of the plain-., tiff, that the defendant’s income is upwards of $20,000 per year; ¿he defendant, however, swears that his only property is an equity of about $2,500 in an unimproved lot, and an equity of about $6,000 in the premises where the parties lived before their separation, and where the plaintiff has been ever since then, and is now, residing. It appears that he is paying yearly tax and water rates upon these premises, which amount to $300; interest on the mortgage thereon, which amounts annually to about $480; the fire insurance premium on the buildings, which is about $80 annually; and in addition to that is paying a yearly premium of $78 on a policy of insurance on his life for $3,000, payable in case of his death to the plaintiff. He swears that the wife’s statement that his income exceeds $20,000 is most exaggerated ; that he is an agent in the -coal business, ,and my income, under contract, will not exceed $5,000.00 per year. * * * I have only my salary to fall back on.” Upon this showing the appellant asks us to reduce the amount of alimony and counsel fees awarded by the learned court below.

Eliminating the yearly item of $78 which the defendant is paying to keep up the insurance on his life in plaintiff’s favor, which is no contribution for her present support, it still appears that the defendant is paying about the sum of $805 yearly for the benefit of the plaintiff in keeping up the premises where she resides. If the allowance for alimony were permitted to stand, it would mean that until the final determination of the action the defendant would be required to pay the plaintiff nearly thirty-seven per cent of his annual income for her support and maintenance. This is, we think,, disproportionate. There is no issue of the marriage, no children whose support the defendant is required to bear. It appears, too, that the defendant is required to support his aged mother and contribute to the support of a sister. In view of all the circumstances, the allowance made at Special Term is too great, and the order should be modified in this particular by reducing the weekly payment of alimony pending the litigation to ten dollars per week, allowing the provision in relation to the occupancy of the house to remain unchanged.

The defendant raises the question that the court was without power to direct that the plaintiff should have the use of the house at Hinety-second street and First avenue, or to adjudge any penalty upon the defendant in case he failed to pay the interest and the other charges thereon, or by any act or omission prevent the plaintiff from living quietly or peacefully therein. The court doubtless • is without power to make such a direction,, but from the language of the order it seems to us that it is meánt to embody an agreement or understanding made upon the argument of the motion, to the effect that the plaintiff might have the use and occupation of the house pending the litigation, and that the allowance for alimony was made upon the consideration of this concession to the plaintiff. Such an interpretation of the order is borne out by the statements in the answering affidavit of the defendant. If such was not the agreement upon the argument on which the court based its determination of the other directions therein, the defendant might • have moved to resettle the order. This he has not done. His motion for reargument was not addressed to this phase of the order, and can in no way be construed into an application to resettle,

The allowance for counsel fee we believe should also be reduced. The defendant, ever since the 11th day of January, 1904, has been in default of pleading, and from present indications there will be apparently no contest: The abandonment, from the facts that appear in the papers before us, will be easily proved. While proof of the defendant’s income may be more difficult to obtain, there is] nothing so unusual about.it as to warrant the allowance of counsel fee as' great as has often been allowed in cases of similar financial capacity- to compensate attorneys for the trial of an actual, contested litigation. If the defendant subsequently moves to open the default, and ultimately raises an issue, opportunity will doubtless be given to make application for further allowance. . The allowance for counsel fee should be reduced to $10Q. With these modifications the order should be affirmed, without costs.

All concurred.

Order granting alimony and counsel fee modified in accordance with opinion of Hooker, J., and as modified affirmed, without costs. Appeal from order denying motion for reargument dismissed, without costs.  