Opinion
November, 1932.
Order denying defendant's motion for judgment on the pleadings affirmed as to the first cause of action and reversed on the law as to the second cause of action, and defendant's motion for judgment on the pleadings as to the second cause of action granted, without costs. ( Mirizio v. Mirizio, 242 N.Y. 74; Shonfeld v. Shonfeld, 236 App. Div. 271; Feig v. Feig, 232 id. 172.) The order allowing a counsel fee of two hundred dollars is affirmed, with ten dollars costs and disbursements. In our opinion, there was no abuse of discretion by the Special Term in giving this allowance to plaintiff to enable her to pay counsel for services in various motions made by defendant in which he was unsuccessful, and for the protection of her interests on the appeal by defendant to this court from the order denying his motion for judgment on the pleadings. Kapper, Scudder and Tompkins, JJ., concur; Lazansky, P.J., and Davis, J., concur except as to the affirmance of the order allowing counsel fee, as to which they dissent on the ground that there is no jurisdiction to allow counsel fee to plaintiff in an action for annulment. ( Jones v. Brinsmade, 183 N.Y. 258; Farnham v. Farnham, 227 id. 155.) As to the motions heretofore made by defendant, the allowance of costs in denying them must be deemed sufficient.