Opinion
December 14, 1959
Appeal by plaintiff, as limited by her brief, from so much of an order modifying without a hearing or reference a judgment of separation so as to reduce the alimony required to be paid thereunder from $60 a week to $40 a week. Appeal by defendant, as limited by his brief, from so much of said order as awards a counsel fee to plaintiff. Order insofar as it modified the judgment of separation reversed, without costs, and matter remitted to the Special Term for a hearing or a reference as to whether there has been such a change in the circumstances of either party since entry of the judgment of separation as to warrant a reduction. Order insofar as it granted a counsel fee affirmed, without costs. It was an improvident exercise of discretion to make the order appealed from on the papers before the court. We are of the opinion that the court has power to make an allowance to appellant-respondent for a counsel fee on the application. Nolan, P.J., Wenzel, Ughetta, Hallinan and Kleinfeld, JJ., concur.