Opinion
279 A.D. 612 107 N.Y.S.2d 977 LOUIS APPELBAUM, Appellant, v. FRIEDA APPELBAUM, Respondent. Supreme Court of New York, Second Department. October 29, 1951
Upon appeal from so much of an interlocutory judgment of divorce as directs weekly payments for the support and maintenance of the children of the parties and directs payment of counsel fees to defendant's trial counsel, the record on appeal, presented upon affidavit of plaintiff's counsel in lieu of certification, contains only the notice of appeal, the pleadings, and the interlocutory judgment. The interlocutory judgment, entered upon motion of appellant's attorney, recites that the issue of defendant's adultery had been previously determined in a trial by jury and the defense of condonation of the adultery was subsequently tried at Special Term and determined in plaintiff's favor; that testimony given in open court satisfactorily proved the allegations of the complaint; and that the court 'having been fully advised in the premises' had made a decision in writing. It is clear that the presented record on appeal does not contain all the evidence and papers on which it was entered material to the question raised by this appeal, and which must have been heard or read, or regarded as read, by the court at Special Term in fixing the amounts so awarded. It is clear also that the award of counsel fees is inadvertently directed to be paid to trial counsel instead of to the defendant. (Civ. Prac. Act, § 1169.) The interlocutory judgment should be amended to recite all such matters and papers and to correct the direction of payment of counsel fees. This presented record on appeal is remitted to Special Term for resettlement, after amendment of the interlocutory judgment in conformity herewith, without costs.
Present--Johnston, Acting P. J., Adel, Sneed, Wenzel and MacCrate, JJ.