Opinion
282 A.D. 692 122 N.Y.S.2d 612 WINTON AMOS, Respondent, v. THOMAS AMOS, Appellant. Supreme Court of New York, First Department. June 30, 1953
Appeal from an order of the Supreme Court at Special Term, entered April 10, 1953, in New York County, directing a reference and awarding interim alimony and counsel fee to plaintiff.
Per Curiam.
On the state of facts herein disclosed, we deem an interim reference pendente lite to determine temporary alimony and counsel fee unnecessary and tending to foster delay. Although issue was joined in January, 1953, no note of issue has as yet been filed in June, 1953. As this court has previously indicated, in actions for separation, a trial may now be had within a few months after issue is joined; and the best protection against any unfairness in the fixing of temporary alimony is a speedy trial rather than interim references or appeals (Bleiman v. Bleiman, 272 A.D. 760).
Defendant admits and plaintiff does not deny that he has been paying plaintiff $80 a week plus rent and other charges amount in all to at least $100 a week. On condition that defendant continues to pay to plaintiff at least $100 a week, plaintiff's application for temporary alimony should be denied; and the order to be entered herein shall direct defendant until the trial to continue to make payments to plaintiff of at least $100 a week for alimony pendente lite and support, maintenance and education of the infant daughter (Smith v. Smith, 272 A.D. 868).
Note of issue should immediately be filed and the parties should proceed to trial expeditiously without any unnecessary delay.
On the facts disclosed as to defendant's income and resources, the order should also be modified by increasing the counsel fee to $500, one half of which is to be paid within twenty days after service of a copy of the order to be entered herein with notice thereof and the balance when the case reaches the ready day calendar for trial.
As so modified, the order appealed from should be affirmed, without costs. Settle order.
Dore, J. P., Cohn, Callahan, Breitel and Bergan, JJ., concur.
Order unanimously modified in accordance with the opinion herein and, as so modified, affirmed, without costs. Settle order on notice.