Opinion
December 9, 1958
Order appealed from unanimously modified, with costs to the appellant upon the facts and in the exercise of discretion to the extent of deleting therefrom that portion reducing permanent alimony from $75 to $35 weekly and denying an allowance for counsel fees and proceeding remanded to Special Term. In 1952 plaintiff was granted a decree of separation and received an award of $75 weekly for her support. The defendant has since obtained a divorce in a foreign State and has remarried. Special Term in its decision stated that it was difficult to determine with any accuracy from the papers the net earnings of the husband. In the light of these facts there should have been a hearing at which both parties would have had an opportunity to develop all relevant facts. In the interval defendant should continue to make weekly payments of $75 retroactive to July 29, 1958. Settle order.
Concur — Botein, P.J., Breitel, Rabin, M.M. Frank and Bastow, JJ.