By the court,
Hogeboom, Justice.I think the order of the special term, denying the defendant alimony or an allowance for expenses of suit, should be affirmed.
1. It is a matter of discretion, and not reviewable. It is made so both by statute and by a long course of decisions. (2 R. S., 148; Osgood agt. Osgood, 2 Paige, 621; Worden agt. Worden, 3 Edw., 387; Bartlett agt. Bartlett, 1 Clarke, 460; 2 Barb. Ch. Pr., 266; Bishop on Marriage and Divorce, sec. 581; Whitney agt. Whitney, 22 How., 177.)
2. If the matter was open for a review on the merits, I should be disposed to affirm the order.
(1.) The preponderance of evidence is in favor of the kindness and good conduct of the husband, and the misconduct and infidelity of the wife.
(2.) She is shown to be now living, and to have been for a year past, in open and notorious adultery with a party who is named.
(3.) The husband has himself but a bare pittance, only *192sufficient for the support of himself and the child whom the defendant has abandoned.
Under such circumstances, it would seem almost like a premium upon conjugal infidelity, and a judicial countenance of open immorality, to supply this woman with the means of continuing her evil course of life, and of facilitating an unconscientious and unfounded defence to a meritorious action.
I acknowledge the general rule, that in a case where the wife prosecutes or defends in apparent good faith, and where the merits of the case are left in doubt, and even where she is not clearly in the wrong upon the facts presented, there is justice and good sense in supplying her out of her husband’s estate, with means to a moderate extent for vindicating her character or enforcing her conjugal rights. But in this case the strong probabilities are against her, and lead to the conclusion that the vicious indulgences which have supplied her thus far with the means of living apart from her husband, will avail to furnish her with resources sufficient to. maintain herself and defend the action until a trial of the facts shall enable the court to make a final decree which shall do justice to all the parties. And while we should be careful to do nothing which should even indirectly tend to induce a resort to such indulgences, we should be equally careful in no degree to countenance them or furnish means for their longer continuance.
The order of the special term should be affirmed.