Opinion
October 29, 1951.
In an action to set aside a separation agreement and for a judicial separation and other relief, plaintiff appeals from an order, insofar as said order refers plaintiff's motion for alimony pendente lite and counsel fees to the trial court. Order modified by striking therefrom the following recitals: "and it appearing that the defendant was not in default under the terms of a separation agreement at the time of the making of said motion and it further appearing that there is in existence a binding separation agreement and that no separation action may be prosecuted until such agreement is set aside by a court of equity and that counsel fees must be limited to services to be rendered in a matrimonial action". As so modified the order, insofar as appealed from, is affirmed, without costs. (Cf. Henning v. Henning, 272 App. Div. 676; De Robertis v. De Robertis, 254 App. Div. 811; Davis v. Davis, 195 App. Div. 430; Botway v. Botway, 273 App. Div. 948.) Although we do not regard such recitals as a determination of the issues involved, nor as binding in any respect on the court which will try the issues, they are redundant and unnecessary. (Cf. White v. White, 175 Misc. 66.) Nolan, P.J., Carswell, Johnston, Sneed and Wenzel, JJ., concur.