Rogers v. Rogers , 279 A.D. 1046 ( 1952 )

Per Curiam.

Upon the conflicting affidavits submitted, we cannot say that plaintiff has shown a reasonable probability of success in her action for a separation. It may be that upon a plenary trial she will be in a position to establish her cause of action, but thus far we are not persuaded that she will prevail.

As we have had occasion to point out recently, the greatest aid to the dispatch of matrimonial problems of the nature presented upon this appeal would be an early trial of the action where the merits of the case and the financial ability of the husband, if it becomes a material issue, can be inquired into by a Justice who is to hear testimony of the witnesses instead of having the questions involved decided upon affidavits (Hawkins v. Hawkins, 279 App. Div. 121; Steinman v. Steinman, 279 App. Div. 781). Defendant is directed to place the cause upon the calendar forthwith, and there is to be an immediate trial. All questions as to the merits may then be promptly disposed of. In the meantime, defendant should pay plaintiff the sum of $50 a week for the support and maintenance of their child.

The order entered January 14, 1952, should be modified by granting the motion only to the extent of directing defendant to pay to plaintiff the sum of $50 weekly for the support of the child and otherwise denied. Settle order.

The order and judgment entered February 21, 1952, should be reversed and the motion denied.

The order entered February 21, 1952, directing payment of printing expenses and counsel fees, should be affirmed.

The order entered February 25, 1952, should be reversed and the motion denied.