Opinion
November 1, 1977
Judgment, Supreme Court, New York County, entered May 5, 1977, granting the plaintiff, inter alia, an award in the sum of $10,969.50 reflecting arrears as well as a counsel fee in the sum of $1,500, unanimously modified, on the law, the facts, and in the exercise of discretion, to the extent of reducing the judgment by $112.76; striking the award of counsel fees in the sum of $1,500; and directing the return of $500 heretofore paid as counsel fees, and otherwise affirmed, without costs or disbursements. Appeals from the order of the Supreme Court, New York County, entered April 7, 1977, which, inter alia, permitted entry of judgment as to arrears and counsel fees, and from the order of the Supreme Court, New York County, entered April 21, 1977, denying defendant's motion to disqualify Justice Shorter, unanimously dismissed, without costs or disbursements, since an appeal from an intermediate order may not survive the entry of final judgment (CPLR 5501, subd [a], par [1]; Matter of New York Life Ins. Co. v Galvin, 41 A.D.2d 83, 86; Champion Int. Corp. v Dependable Inds. Corp., 47 A.D.2d 473, 475). However, the orders have been reviewed to the extent that they may have affected the final judgment pursuant to CPLR 5501 (subd [a], par [1]) and, upon such review, the order of April 7, is modified to the extent indicated by modification of the judgment entered May 5, 1977. The order of April 21, 1977 is not reviewed since it does not affect the final judgment. The stay is vacated. We find that there was an arithmetic error in the computation of arrears by the trial court to the extent of $112.76, and have amended the judgment accordingly. Furthermore, we find that the initial divorce decree awarded counsel fees and they have already been paid. It was improvident for the court under these circumstances to award further counsel fees. In consonance with this finding, the recent payment by defendant of $500 in counsel fees is directed to be refunded.
Concur — Kupferman, J.P., Birns, Silverman and Lane, JJ.