Opinion
October 31, 1949.
In an action by plaintiff husband against defendant wife for divorce, judgment (which has since become final) was entered granting plaintiff a divorce, but granting custody of the four infant children of the marriage to defendant. Defendant did not appeal from the decree, but plaintiff has appealed from that portion of the decree awarding custody of the children to his wife. To oppose that appeal, defendant has obtained an allowance of $200 to pay her counsel. Plaintiff appeals from the latter order. Order affirmed, without costs. It is within the power of the court to make an allowance for counsel fee under the circumstances here presented. ( Fox v. Fox, 263 N.Y. 68.) Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.