Opinion
September 22, 1959
Order modified, on the law and on the facts, with $20 costs and disbursements to the appellant, and motion for temporary alimony and counsel fee granted to the extent of awarding plaintiff the sum of $70 per week for the support of herself and of the infant issue of the marriage pending the determination of the action, and a counsel fee of $500, with leave to plaintiff to apply to the trial court for additional counsel fee. The fact that the charges leveled at each other by the parties are conflicting and of a grievous nature is not sufficient to defeat plaintiff's claim for temporary support. Moreover, since defendant's opposing papers charge plaintiff with misconduct, she is entitled to counsel fee to defend herself against such charges. The order, as so modified, is otherwise affirmed.
I dissent in part. The conflicting charges and recriminations warranted a denial of temporary alimony, particularly since Special Term granted the parties the privilege of an immediate trial. However, the wife's right to any temporary alimony should have been reserved for the trial court to be decided in the light of the facts developed on the trial. I agree with the majority of the court that the circumstances called for an award of a counsel fee. I would therefore modify the order only to the extent of allowing the counsel fee and reserving the question of temporary alimony for the trial court, and otherwise affirm. Settle order.