Opinion
August 14, 1959
Frederick Posses for plaintiff.
Sidney R. Siben for defendant.
Motion for alimony and counsel fees pendente lite.
Plaintiff left the marital home with two of the children, 9 and 11 years of age, on March 28, 1959. She commenced her action on April 2, 1959 and made the present motion on July 13, 1959. The 11-year-old son, while visiting with the defendant on July 10, 1959, refused to return to plaintiff and elected to remain with his father.
On the proof submitted on this motion there is some question in my mind as to plaintiff's ability to successfully prosecute this action. Consequently the question of the wife's support and counsel fee will be reserved for determination by the trial court. In the meantime, however, the defendant will be required to pay to the plaintiff the sum of $15 per week toward the maintenance and support of the child residing with plaintiff.
There is no representation as to whether a note of issue has been filed. If one has been filed, the order to be entered hereon may contain a direction that the action be set for trial at the head of the Special Term Calendar to ensure an early trial in view of the denial of temporary alimony.
Submit order.