Opinion
March 18, 1960
Appeal by plaintiff in a divorce action from an order of the Supreme Court at Special Term which, among other things, awarded to defendant temporary alimony and counsel fees. Plaintiff contends that the moving papers, although alleging facts which, if proven, would entitle defendant to a judgment of separation, were insufficient to show reasonable probability of a successful defense of the divorce action in that there was no denial by defendant of any acts of adultery on her part. However, the complaint was not served with the summons or until some days after service of the motion papers and shortly before the return day and until that time defendant was confronted with no specific charge of misconduct. On the return day of the motion she served her unverified answer which denied the allegation of adultery and interposed a counterclaim for separation. In such situation, the Special Term was not bound to deny relief. (Cf. Orr v. Orr, 4 A.D.2d 706; Rudman v. Rudman, 278 App. Div. 636.) Plaintiff's failure to file note of issue and to seek a prompt trial raises some question as to his good faith in bringing the action. Under all the circumstances, we are unable to hold that the granting of the motion constituted an improvident exercise of discretion by Special Term. We find excessive, however, the award of alimony in the amount of $30 per week. Plaintiff earns $110 per week from which he must support himself and the two children of the marriage, they being in his custody. Defendant earns $30 per week as a waitress and does not deny plaintiff's averment that in addition she receives tips in some amount. Order modified, on the law and facts, so as to reduce the amount of the award for alimony to $15 per week, effective as of the date of the entry of the order to be entered hereon, and, as so modified, affirmed, without costs. Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ., concur.