Opinion
279 A.D. 852 110 N.Y.S.2d 49 JEANETTE M. LOWE, Respondent, v. EDWIN S. LOWE, Appellant. Supreme Court of New York, First Department. February 13, 1952
Appeal from an order of the Supreme Court at Special Term, entered December 12, 1951, in New York County, which granted a motion by plaintiff for temporary alimony and counsel fees. The defendant stated in his notice of appeal that he appealed from the denial, by the Presiding Justice of the Appellate Division of the Supreme Court in the first judicial department, of a motion by defendant for an order to include in the recital of the Special Term order an affidavit of defendant's attorney submitted with the answering affidavits.
Per Curiam.
There is an outstanding judgment of separation between these parties providing for the wife's maintenance. Such judgment measures the husband's obligation to the wife, and she may not receive an award for temporary alimony in this action for divorce (see Schmalholz v. Schmalholz, 111 A.D. 543). The fact that the parties had been temporarily reconciled would not alter the case in the absence of a revocation of the separation judgment pursuant to section 1165 of the Civil Practice Act (see Schatzberg v. Schatzberg, 229 A.D. 214, appeal dismissed 255 N.Y. 635; Beeber v. Beeber, 225 A.D. 757). The Special Term had the power, nevertheless, to award counsel fees in the divorce action (see Schmalholz v. Schmalholz, supra). We find, however, that the sum awarded was excessive and reduce it to $2,500.
The order appealed from should be modified by striking the provisions for alimony and reducing the award for counsel fees to $2,500 and, as so modified, affirmed, without costs. The balance of the appeal is dismissed. Settle order.
Dore, J. P., Cohn, Callahan, Van Voorhis and Shientag, JJ., concur.
Order unanimously modified by striking the provisions for alimony and reducing the award for counsel fees to $2,500 and, as so modified, affirmed, without costs. The balance of the appeal is dismissed. Settle order on notice.