The order of reference insofar as it relates to temporary alimony and provides for the payment of $50 a week pending the report of the official referee is improper. The parties had entered into a separation agreement before this action for a judicial separation was instituted by the wife. The husband is continuing to pay the amount provided for in the separation agreement for the support and maintenance of his wife and child; he was not in default when the order appealed from was made. The validity of the separation agreement when entered into and any questions of breach, waiver or default should not be determined on conflicting affidavits but should await the trial. The reference may proceed to enable the court to pass on the application for counsel fees, if the parties so desire. The order of reference is modified by striking therefrom the provisions for payment of alimony (Johnson v. Johnson, 206 N. Y. 561; Henning v. Henning, 272 App. Div. 676; Butler v. Butler, 206 App. Div. 214; Ascher v. Ascher, 213 App. Div. 183; Rosenblatt v. Rosenblatt, 209 App. Div. 373). As so modified the order appealed from is affirmed, without costs.
Glennon, J. P., Dore, Cohn, Callahan and Shientag, JJ., concur.
Order of reference unanimously modified by striking therefrom the provisions for payment of alimony and by limiting the scope of the reference to the