Opinion
March 26, 1981
Appeal from so much of an order of the Supreme Court at Special Term, entered July 23, 1980 in Albany County, as required defendant to pay plaintiff, within 30 days of service of the order with notice of entry, the sum of $750 as reimbursement of counsel fees already paid by plaintiff. The test adopted by this court in Matter of Frye v. Truhn ( 68 A.D.2d 989, 990) was that "such an award of counsel fees can only be justified when it is necessary to insure that an indigent wife has legal representation." The present record contains no such proof. On the contrary, plaintiff herein has insured her legal representation by payment to her counsel of $750 from her own ample funds and such payment did not approach rendering her indigent. Accordingly, that portion of the order appealed from must be reversed (Matter of Hoyt v. Boyar, 77 A.D.2d 685). Order modified, on the law and the facts, by striking the last decretal paragraph which awards counsel fees to Cathy D. Edwards, and, as so modified, affirmed, without costs. Sweeney, J.P., Main, Casey, Mikoll and Yesawich, Jr., JJ., concur.