Opinion
November 5, 1951.
In a separation action, the defendant husband appeals from so much of an order as grants alimony of $300 a week and counsel fees of $4,000; and from so much of an order which, on reargument, adheres to the original determination. The plaintiff appeals from an order which denied a motion for additional counsel fees for the reargument of the motion for alimony and counsel fees and for the appeal taken by the husband. Appeal from the original order dismissed in view of the appeal from the order on reargument (Civ. Prac. Act, § 562-a). Order granting reargument and adhering to the original determination, insofar as appealed from, modified on the facts by striking out the second ordering paragraph and substituting therefor provisions requiring payment of $160 per week on Monday of each week, commencing May 14, 1951; and of counsel fees in the sum of $2,500; and that defendant should pay the difference between $160 and the payments heretofore made by him from May 14, 1951, and the difference between $2,500 and the amount paid by him for counsel fees. All payments to be made at the place and in the manner provided by the original order for payment of alimony and counsel fees. As so modified, the order is affirmed, without costs. Order denying motion for an allowance of counsel fees for the reargument and the appeal by the husband modified on the facts by striking out the second ordering paragraph and substituting therefor a provision that the motion for counsel fees for the appeal is granted, and defendant is directed to pay $500 as and for counsel fees and expenses, in the manner and at the place for payment of alimony, within twenty days after service upon his attorneys of a copy of the order hereon with notice of entry. As so modified, the order is affirmed, without costs. On this record, the award on the original motion for temporary alimony and counsel fees was excessive. However, in view of the fact that the defendant sought by the appeal to reverse and not modify the orders, a reasonable sum should have been allowed for counsel fees and expenses on the appeal. Discretion was properly exercised in the denial of the motion of plaintiff insofar as additional counsel fees were asked for the reargument of the motion for alimony and counsel fees. In view of the allowance here made for counsel fees and expenses on the appeal, the defendant is not required to pay for or reimburse plaintiff for the part of the consolidated record embracing her appeal. The defendant is entitled to credit for all payments made to the plaintiff from May 14, 1951, up to the entry of the order hereon. Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.