Opinion
October 29, 1970
Appeal from the Monroe Special Term.
Present — Del Vecchio, J.P., Marsh, Witmer, Moule and Henry, JJ.
Order unanimously modified in accordance with the memorandum herein, and as so modified affirmed, without costs. Memorandum: The defendant's counsel agreed at the time of the argument that the defendant would move from the family residence, and that the plaintiff could have sole and exclusive occupancy of it. The decretal provisions in the order pertaining to the family residence and the award of counsel fees and temporary alimony to the wife should be stricken. The action should be placed at the foot of the Day Calendar for November 16, 1970. The Trial Judge, after presentation of all the proof, of course, can make an award for counsel fees and alimony if he considers such proper. Matrimonial actions should be tried promptly and, if warranted by the proof, the trial court may make an appropriate allowance nunc pro tunc ( Light v. Light, 29 A.D.2d 540; Kaplan v. Kaplan, 25 A.D.2d 563). As stated in De Gasper v. De Gasper, 31 A.D.2d 886; "Appeals from orders granting temporary alimony are not favored, and it is suggested that generally in lieu thereof counsel should promptly proceed to trial (see Domestic Relations Law, § 249)." (See, also, Cohen v. Cohen, 32 A.D.2d 754.)