Opinion
Argued June 6, 1963
Decided July 10, 1963
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, GEORGE A. TIMONE, J.
Stephen A. Wise for appellant.
Ballon, Stoll, Shyman and Levine for respondent.
Order reversed, with costs, and matter remitted to the Family Court, New York County, for further proceedings in accordance with the following memorandum: We hold that section 438 FCT of the Family Court Act, insofar as it is derived from the amendment by chapter 213 of the Laws of 1961 to section 131 of the Domestic Relations Court Act, was intended, in suitable cases, to authorize the allowance of counsel fees in proceedings brought by a former wife exclusively for the support of her children. The intention of the Legislature was not to discriminate in this regard against children of divorced parents in favor of those whose parents may have been separated but not divorced. Question certified answered in the affirmative.
Concur: Chief Judge DESMOND and Judges DYE, FULD, VAN VOORHIS, BURKE, FOSTER and SCILEPPI.