Opinion
June 23, 1947.
Appeal by plaintiff from an order insofar as it denied her application to reject a report of an Official Referee and granted defendant's motion to confirm said report. The report recommended a denial of defendant's motion to decrease alimony payable under a judgment of separation and denied plaintiff's cross motion to increase the alimony. Order, insofar as appealed from, reversed on the law and the facts, with $10 costs and disbursements, defendant's motion denied, and plaintiff's motion to reject the report of the Official Referee granted. Plaintiff's motion for an increase in alimony, and for a counsel fee to oppose defendant's motion for a decrease of alimony, is granted, with $10 costs, to the extent of increasing the alimony, beginning October 23, 1945, from $35 a week to $40 a week, and allowing a counsel fee of $100, payable within five days from the entry of the order hereon. The record furnishes a basis for a finding that the factor of the increased income of the defendant is offset by the lessening of the burden upon plaintiff as a consequence of the emancipation of the two children. The proof, however, does not warrant the conclusion that the added burden upon the plaintiff due to income tax exactions are also thus offset, in view of the effect of increased living expenses as compared with the time when the alimony was previously fixed, before the children were emancipated. ( Bartenbach v. Bartenbach, 271 App. Div. 799; Kraunz v. Kraunz, 293 N.Y. 152.) Hagarty, Acting P.J., Carswell, Adel, Nolan and Sneed, JJ., concur.