Opinion
May 16, 1949.
Present — Nolan, P.J., Carswell, Sneed, Wenzel and MacCrate, JJ.
Defendant appeals from so much of a judgment in an action for separation as fixed alimony and awarded counsel fee and dismissed a counterclaim to impress a trust on real and personal property. Judgment modified on the law and the facts by striking therefrom the fifth decretal paragraph directing the payment of counsel fee and, as so modified, insofar as appealed from, unanimously affirmed, without costs. Under the circumstances here shown, counsel fee should not have been allowed. ( Beadleston v. Beadleston, 103 N.Y. 402, 404; McCarthy v. McCarthy, 137 N.Y. 500; Fishman v. Fishman, 275 App. Div. 777.)