Opinion
October 13, 1964
In an action by a wife to annul her marriage to the defendant, or, in the alternative, for a judicial separation, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County, made April 6, 1964 upon reargument, as adhered to the original decision and as directed defendant to pay to plaintiff, pendente lite, $25 per week and a counsel fee of $400, such fee to be paid in two equal installments. Order modified: (1) by reducing the temporary alimony from $25 to $15 per week and the counsel fee from $400 to $150; and (2) by striking out the provisions directing the installment payments of the counsel fee. One half of the $150 counsel fee now directed to be paid shall be payable within 30 days after entry of the order hereon, and one half shall be payable when the action first appears on the Day Calendar for trial. As so modified, the order, insofar as appealed from, is affirmed, without costs. In our opinion, upon the present record, the awards for alimony and counsel fee made at Special Term were excessive to the extent indicated. The present awards, based on conflicting affidavits, should have no effect upon the trial court in its determination as to the permanent alimony, if any, and as to the additional counsel fee, if any. Its determination should rest exclusively upon the proof adduced at the trial ( Goldberg v. Goldberg, 20 A.D.2d 806). Ughetta, Acting P.J., Christ, Brennan, Hill and Hopkins, JJ., concur.