Opinion
May 4, 1938.
Present — Sears, P.J., Crosby, Lewis, Taylor and Dowling, JJ.
Order reversed, without costs, and motion denied, without costs. Memorandum: The order appealed from awards temporary alimony, counsel fee and expenses in an action, brought by plaintiff against her husband, to set aside a separation agreement and for a separation upon the ground of cruel and inhuman treatment. Plaintiff's first cause of action challenges the validity of the separation agreement, executed between the parties in February, 1932, upon the grounds, among others, that its provisions are unfair, inadequate and inequitable. Defendant, in his answer, alleges that plaintiff received a fair proportion of the family property which would have been adequate for her support had she not mismanaged it. These conflicting claims present a question of fact as to the validity of the separation agreement. (See Tirrell v. Tirrell, 232 N.Y. 224.) An action, however, to set aside a separation agreement standing by itself, is not a matrimonial action such as gives the court jurisdiction to grant alimony and counsel fee, pendente lite ( Johnson v. Johnson, 206 N.Y. 561, 567); to justify such awards, it should appear from the motion papers that there is reasonable probability of plaintiff's succeeding upon her alleged cause of action for a separation. ( Brush v. Brush, 240 App. Div. 866; De Vide v. De Vide, 186 id. 814; Rolnick v. Rolnick, 223 id. 772; Cassese v. Cassese, Id. 843; Werner v. Werner, 204 id. 791.) Since plaintiff failed in this respect, the order should be reversed, without costs, and the motion denied, without costs. All concur. (The order directs defendant to pay alimony and counsel fees, in an action to vacate a separation agreement and for a decree of separation.)