Earle v. Earle

¶1This is an appeal from an order granting a counsel fee of $850 to the plaintiff in an action for an absolute divorce. The plaintiff swears that she is “possessed of no property whatever, except that she receives the income of a trust fund of $15,000, given to her under her father’s will, and aside from this she has no income whatsoever, except such as her mother may give her out of charity.” The defendant answers this statement by showing that the plaintiff has also the income of a trust fund of $10,350.19 and was entitled to receive from her father’s estate the sum of $3,914.34, as accumulated income under a surrogate’s decree dated October 15, 1910, and in addition that she was apparently seized of an *931undivided one-half interest in real property in Nassau county which was valued in 1907 at the sum of $36,000 for tax purposes. The plaintiff submitted no further affidavit answering or explaining this statement of alleged facts. Under these circumstances no counsel fee should have been allowed, as there was no sufficient proof of its necessity. (Lake v. Lake, 194 N. Y. 179.) The order should be reversed and the motion for a counsel fee denied, without prejudice to a renewal of the motion on further facts. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred. Order reversed and motion for a counsel fee denied without prejudice to a renewal of the motion On further facts.