Opinion
September 29, 1970
Judgment of separation entered on or about April 7, 1969, unanimously modified on the law and the facts by reducing the amount provided for maintenance and support of the plaintiff wife to $110 per week and striking direction for defendant to pay $4,000 to discharge obligations for necessities, and, as so modified, affirmed, without costs and without disbursements. We find the plaintiff's testimony on which the award of alimony was made to be incredible and the argument to sustain it so patently fallacious as to be insulting to the intelligence. On the basis of the defendant's proven evidence and the parties' standard of living, we find that $110 is a proper award. The judgment includes an award for $4,000 for sums allegedly spent by the wife for necessaries. There was no separate cause of action for this claim as the rules of pleading require ( Brownstein v. Brownstein, 25 A.D.2d 205; Schapiro v. Schapiro, 27 A.D.2d 667), nor is the demand included in the ad damnum clause. Even if properly pleaded, this claim was not established. There was no competent proof of what the items were and whether they were in fact necessaries. All that was shown was that plaintiff borrowed some money which by a vague calculation was estimated to be $4,000.
Concur — Eager, J.P., Nunez, Steuer and Tilzer, JJ.