Ida L. Mackintosh, Respondent, v. Frank H. Mackintosh, Appellant

Ida L. Mackintosh, Respondent, v. Frank H. Mackintosh, Appellant. Alimony, in an action fov 'a separation—denied where the husband’s misconduct is not particularly specified and the plaintiff lives in adultery. An application for alimony made in an action brought by a wife for a separation, upon the ground of cruel and inhuman' treatment, will be denied where the moving papers do not specify particularly the nature and circumstances of the defendant’s alleged misconduct,, as required by section 1764 of the Code of Civil Procedure, and where the answering affidavits not only .disprove the general charges of misconduct contained in the moving papers, but show, without contradiction, that the plaintiff is living in open-adultery. Appeal by the defendant, Frank H. Mackintosh, from an order of the Supreme Court,, made at the New York Special Term. and entéred in fhe office.of the clerk of .the county of New York on the. 23d' day óf Juné, 1899, granting the plaintiff’s, application for alimony and counsel fee. . Hartley G. Pelletier, for the appellant. Henry W. Leonard, for the respondent. [MAJORITY — Barrett, J.:] Barrett, J.: The plaintiff seeks .a separation upon the ground of .cruel and inhuman treatment. She applied for alimony and counsel fee upon her complaint and' affidavit. Both are entirely barren of any such specification of the nature and circumstances of the defendant’s alleged misconduct as is required by section 1764 of the Code of Civil Procedure. No distinct, act of cruelty.is stated, .nor- are the time and place of any particular act of that charge specified. The averments throughout are of mere. generalities. Upon the other hand, the defendant in his answering affidavits not only disproves these, general charges,, but alleges and proves that the plaintiff is a loose woman and has been living in open adultery since their separation. The plaintiff did not even file a rebutting affidavit denying the charge of adultery. ■ It is difficult to perceive, under these circumstances, upon what principle alimony and counsel fee were granted. They should have been denied even upon the original case presented by the plaintiff. Upon her charges as thus alleged., she can have no reasonable hope of success. When, in addition to the defects in the plaintiff’s complaint and the weakness of the case presented by her affidavit, we have a well-proved and undenied countercharge of adultery, there should be no hesitation in denying the application. The order appealed from should be reversed and the motion denied. Van Brunt, P. J., Rumsey, Ingraham and McLaughlin, J J, concurred. Order reversed and motion denied.