Opinion
June 27, 1968
Judgment awarding plaintiff a separation, unanimously modified, on the law and the facts and in the exercise of discretion, to the extent of reducing alimony to $100 a week, effective January 9, 1968, the date of the judgment, reducing counsel fee to $1,000, and deleting the fourth decretal paragraph of the judgment, without prejudice, and, as so modified, affirmed, without costs or disbursements. In the circumstances, we are of the opinion that the reduced alimony is consonant with the preseparation standard of living, and retroactivity should be limited to the date of the judgment since plaintiff was dilatory in applying for temporary alimony and in the prosecution of the action. The complaint and "amended supplemental complaint" served seven months later do not allege the claim of title adjudicated by the fourth decretal paragraph, and no proof was adduced with reference thereto. This claim can properly be disposed of in a plenary action.
Concur — Eager, J.P., Capozzoli, McGivern, Rabin and McNally, JJ.