Opinion
January 14, 1953.
Appeal from Supreme Court, Ulster County.
Present — Foster, P.J., Bergan, Coon, Halpern and Imrie, JJ.
It has been stipulated in open court that the appeal be heard upon a record presented in typewritten form and consisting of the papers used in support of the order. The action is for a separation upon the grounds of cruel and inhuman treatment. Appellant urges that the Special Term did not have before it sufficient evidence to warrant a belief that plaintiff has a reasonable probability of success in the prosecution of the action, and that hence it was without power to make the order in question. Appellant also urges that in any event the Special Term abused its discretion in fixing the amount of alimony and counsel fee. Upon the record presented we can find no compelling reason to disturb the discretionary judgment exercised by the Special Term. Order unanimously affirmed, without costs, and the stay, heretofore granted, is vacated and set aside.