Opinion
March 26, 1915.
August Becker and J. Ralph Ulsh, for the appellant.
James O. Moore and Eugene M. Bartlett, for the respondent.
The plaintiff in this action alleges that since about the 2d of January, 1915, the defendant, without any just cause or reason therefor, has abandoned and refused to live and cohabit with the plaintiff as his wife and refuses to make any provision for her support and maintenance; that he has left her entirely destitute and refuses to resume and continue his marital obligations with her.
The affidavits seem to support this allegation of the complaint, but the defendant contends that because the plaintiff left her home and brought a suit for support and maintenance which was dismissed because both parties were at fault, she is not entitled to return to her husband and resume the marital relation, or maintain this action.
We are not prepared to assent to that view. That contention is based largely upon the decision in Silberstein v. Silberstein ( 156 App. Div. 689). We need not now discuss the scope of that decision. If the facts are as plaintiff here contends, they are sufficient to require a trial and the question to be passed upon as to whether she is entitled to any relief; and if so, the order requiring the husband to provide for her support in the meantime and to furnish her with funds to carry on her suit is proper, she being without means of her own and entirely destitute.
The point is made that the order if otherwise correct is erroneous in requiring the defendant to pay the counsel fee to plaintiff's attorney, mentioning him by name. We think that point is well taken and the order should be modified by requiring the payment to her and not to a designated attorney, and as so modified the order should be affirmed, without costs.
All concurred.
Order modified so as to require the payment to be made to the plaintiff instead of to her designated attorney, and as so modified affirmed, without costs.