The majority of the court is of the opinion that the allowance of alimony and attorney’s fees under the evidence is proper, regardless of whether a common-law marriage was shown or not. In the leading case of Brinkley v. Brinkley, 50 N. Y. 184, Chief Justice Folger, speaking for the court, after a careful and exhaustive review of authorities, English and American, reaches the conclusion that, “in all applications for temporary alimony and the expenses of the action, although there may be in the answer a general denial of the existence at any time of the marital relation, the court has the power, from the affidavits and other papers presented to it, to pass upon the question for the purposes of the application, and it is not bound down to the allegation of the complaint and the denial of the answer if other papers or proof are submitted to it; and, though the denial of the answer, if standing alone, would bring the case within the rule that where no marital relation is admitted or proved there is no right of alimony, yet, if the matters contained in other papers or shown by legitimate proofs before the court make out in the judgment of the court a fair presumption of .a fact of marriage, it has the power to grant alimony pending the action and expenses of the action.” This is sound doctrine, and supported, we think, by the weight of authority.
In Vincent v. Vincent, 16 Daly (N. Y.), 535, it is said “that; to authorize an allowance of alimony pendente lite, the existence of the marital relation must be shown to the satisfaction of the court, is a settled rule in the jurisprudence of this State. But, as in other preliminary contestations, the fact is not to be established with the clearness and conclusiveness exacted of proof as the basis of a final adjudication upon the rights of the litigant parties.” See other cases cited in brief of appellee.
These principles, applied to the facts of this case as developed on behalf of the appellee, leave no question as to the correctness of the court’s ruling.
Appellee follows up the allegation of marriage by her own evidence that the ceremony was performed by one authorized to solemnize it, and then shows by affidavits of others, and even by appellant, the constant cohabitation of himself and appellee for years, as husband and wife. These facts warrant the reasonable presumption that appellant and appellee were married, as .appellee swears they were, and show a strong probability that appellee would succeed on the final hearing in establishing the truth of the ¡ allegation of her marriage to appellant. Appellee also establishes in the same way the reasonable probability that there is no truth in the charge of adultery against her.
Where marriage is alleged in the complaint and denied in the answer, it is the rule in some jurisdictions that -the fact of marriage must be established by the plaintiff by a preponderance before an order of alimony can be obtained. Hite v. Hite, 124 Cal. 389, 57 Pac. 227; McKenna v. McKenna, 70 Ill. App. 340.
Even if this were the rule in our State a finding that appellee had met its requirements in this case would not be clearly against the weight of the evidence.