Opinion
February 28, 1977
In an action for a separation and for a declaration of paternity as to the infant twins born to plaintiff, defendant appeals from an order of the Supreme Court, Queens County, dated September 8, 1976, which denied his motion (1) to vacate a prior order of the same court, dated July 13, 1976, which, upon his default, awarded plaintiff $75 per week as temporary support for herself and three children, and $750 as a counsel fee and (2) to compel plaintiff and her infant twins to submit to a blood grouping test. Order reversed, without costs or disbursements, motion insofar as it sought to vacate the default, granted, on condition that defendant pay $40 per week for the support of his wife and the child David James, pending a hearing and new determination as to plaintiff's application for temporary alimony and counsel fees, and motion, insofar as it sought to compel plaintiff and her infant twins to submit to a blood grouping test, granted. In the interest of justice, defendant should not be required to pay $75 of his net weekly income of $97 for support, at least until the motion for temporary alimony is heard on the merits. As to the branch of the motion which sought to compel plaintiff and the infant twins to submit to a blood grouping test, the moving papers contain sufficient facts to warrant the ordering of such a test (see Anonymous v Anonymous, 1 A.D.2d 312). Rabin, Acting P.J., Shapiro, Titone and O'Connor, JJ., concur.