285 N.Y. 151 | NY | 1941
In an action for divorce, the plaintiff made a motion for temporary alimony and counsel fee. The parties, in 1913, entered into a separation agreement whereby the defendant agreed to pay to the plaintiff the sum of twenty dollars per week for her support and the support of the children of the parties. The defendant has paid that sum regularly and does not dispute his obligation under that agreement. The plaintiff, upon the motion for temporary alimony, urged that consent to accept the amount fixed by the separation agreement had been extorted from her and that the defendant is abundantly able and should be compelled to pay a much larger sum for her support, though now the children are married.
The court at Special Term granted to the plaintiff as alimony the amount which the parties had by their agreement fixed. Both parties appealed to the Appellate Division and upon the cross-appeals the order was reversed, two of the justices dissenting, and the motion for temporary alimony was denied. Leave to appeal was granted to the plaintiff by the Appellate Division and the following questions certified:
"1. In an action for divorce brought by a wife against a husband, may the Supreme Court order the payment of temporary alimony where there is a valid and subsisting separation agreement between the parties providing for a stipulated sum, to be paid weekly for the wife's support, *153 which agreement is being performed by the husband according to its tenor?
"2. On the record in this case should the court, at Special Term, have granted plaintiff's motion for alimony pendentelite?"
We have said in Goldman v. Goldman (
Whether temporary alimony should be granted in a divorce action and the amount of alimony, if granted, rests ordinarily in the discretion of the court. Upon an appeal from an interlocutory order this court may not review the court's exercise of discretion even where the Appellate Division has reversed a finding in that regard of the court below. (Cf. Civ. Prac. Act, § 589.) Only if it appears that the temporary alimony was denied solely on the ground that the court was without power to grant it would a question of law be presented which we could review. *154
The order of reversal by the Appellate Division does not indicate that the modification was not upon a question of fact and we do not apply to interlocutory orders the same presumption as to the grounds of reversal which we are expressly commanded to apply when there has been a reversal of a judgment (Civ. Prac. Act, § 602) or which, without express command, we apply to final orders which are not discretionary. (Gang v. Gang,
It follows that the appeal should be dismissed, without costs.
LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur.
Appeal dismissed. *155