Maud Downing, Respondent, v. John J. Downing, Appellant

Maud Downing, Respondent, v. John J. Downing, Appellant. Alimony and counsel fees—a complaint on information and belief must be supported. Where the allegations of a complaint, in an action by a wife for divorce, in regard to the husband’s adultery, are made entirely upon information and belief, and are absolutely denied in an affidavit filed before answer by the defendant, and the plaintiff offers no evidence of reasonable probability of success in establishing them, alimony and counsel fees should not be granted. Appeal by the defendant, John J. Downing, from an order of the Supreme Court, made at the New York Special Term, bearing date the 18th day of October, 1897, and entered in the office of the clerk of the county of New York, awarding the plaintiff alimony and counsel fees. O. A. Moses, for the appellant. O. A. B'torgess, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: This'action was brought to procure an absolute divorce against the defendant. The complaint had been served, but at the time of the making of the motion in question the time to answer had not expired. All the allegations constituting the ground of divorce in the complaint are upon information and belief; and this motion was based upon a petition and the complaint. The defendant, answering the motion, filed an affidavit denying absolutely the charges of adultery contained in the complaint, and no proofs whatever tending to show the sources of information, or the grounds of belief of the plaintiff, were presented to the court. We think, under these circumstances, the plaintiff’s motion should have been denied. In aid of her application she should, have exhibited to the court some evidence tending to show that there was a reasonable ground for her commencing the action, and that there was a reasonable probability that she might succeed in establishing her charges. The sole allegation, as already stated, in regard to the adultery of the defendant is made by the plaintiff upon' information and belief, with nothing whatever to show that she had any reasonable ground for any such belief. The order should be reversed and the motion denied, without costs, with leave to renew upon further proofs. Present — Van Beunt, P. J., Barrett, .Rumsey, O’Brien and Ingraham, JJ. Order reversed and motion denied, without costs, with leave to renew upon further proofs.