Opinion
June 22, 1972
Appeal from an order of Supreme Court, New York County, entered December 9, 1970, establishing temporary alimony, unanimously dismissed on the law, without costs and without disbursements. After final judgment, an intermediate order is merged therein and does not survive, unless it comes up for review allowed pursuant to CPLR 5501 (subd. [a], par. 1). Further, an order granting temporary alimony does not affect the final judgment and cannot be reviewed on an appeal from the final judgment. ( Caplin v. Caplin, 33 A.D.2d 908; Koziar v. Koziar, 281 App. Div. 771; see generally: 7 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 5501.05.) Judgment, Supreme Court, New York County, entered July 9, 1971, unanimously modified, on the law and the facts, to the extent only of reducing the judgment in the amount of $1,800 for necessaries by $368.86, and otherwise affirmed, without costs and without disbursements. Where the payments for necessaries have not been made, the actions belong to the creditors. ( De Brauwere v. De Brauwere, 203 N.Y. 460.)
Concur — Stevens, P.J., McGivern, Markewich, Kupferman and Steuer, JJ.