Sarah M. Hawley, Appellant, v. Walter L. Hawley, Respondent

Sarah M. Hawley, Appellant, v. Walter L. Hawley, Respondent. Alimony — right thereto of a wife suing for a separation — the question as to the wifés success in ■the suit will not he determined on. the affidavits used on the motion. A wife who brings an action against her husband for a separation is entitled- to-be supported by. her husband pending the determination of such action, unless the husband be clearly relieved from his inherent obligation to support her •either by agreement'with the wife through a trustee or, by her misconduct. The court will not attempt to determine, upon the affidavits presented on a motion for the payment of alimony, the question whether the wife will be defeated in her action. • ■ ' Appeal by the plaintiff, Sarah M. Hawley, from 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 18th day of March, 1904, denying the plaintiff’s motion for a reference and refusing to award alimony and counsel fees. Raphael J. Moses, for the appellant. Job E. Hedges, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: The obligation to support the, wife inheres in the marital relation, and she is entitled to such support pen ding, an action for separation, unless the husband be clearly relieved therefrom, either by agreement with the wife through a trustee, or by some act of misconduct on her part which operates to deprive her of the right. In the present. case the petition upon which the application is based, verified, by the wife, makes out a case which entitled her to an award of alimony, unless the same was completely overthrown by the opposing papers. The fact that the plaintiff’s attorney has chosen to lug in and connect with his application a mass of irrelevant and scandalous • matter does not' operate to destroy the averments of the petition. It may be that the plaintiff will be defeated in her action, but the court should not try or determine such question upon affidavits. (Kennedy v. Kennedy, 73 N. Y. 369.) As the obligation in this case rests upon the husband to support the wife, and as the averments of her petition show that she has not forfeited that right, it was incumbent upon the court to make some provision therefor. We think the order, should, therefore, be reversed and the alimony be fixed at six dollars per week, payment to begin with the date of the entry of the order. No counsel fees and no costs of this appeal are allowed to either party. Present—Van Brunt, P. J., O’Brien, Ingraham, McLaughlin and Hatch, JJ. Order reversed and order directed as stated in opinion, without costs. ' '