Opinion
January, 1927.
Order granting alimony and counsel fee modified by striking out the provision in relation to alimony, and as so modified affirmed, without costs, and without prejudice to an application for allowance of alimony in the event that plaintiff should fail to pay the amount stipulated in the separation agreement. We think the counsel fee was not within the contemplation of the parties at the time they executed the separation agreement. The form of action brought by the husband seeks to destroy the relation existing between the parties. We think the wife should be supplied with means to defend such an action notwithstanding the separation agreement. Kelly, P.J., Jaycox, Manning, Kapper and Lazansky, JJ., concur.