246 A.D. 537 | N.Y. App. Div. | 1935
Order in a separation action (1) directing defendant to pay plaintiff sixty dollars a week for her support and the maintenance of the infant daughter; (2) to pay $1,250 counsel fee in installments; and (3) directing defendant to pay the present arrears in taxes, interest and water rates, amounting to $849.70 upon premises owned by plaintiff, modified by striking therefrom the second, third and fourth ordering paragraphs, by inserting in place thereof a provision that the counsel fee be $750; that one-half thereof ($375) be paid to the plaintiff at the office of her attorneys within ten days from the entry of the order hereon; that the remaining half be paid on or before the day of trial; and that upon payment of the first $375 the plaintiff is directed to place the case on the calendar for the next ensuing term. As so modified, the order is affirmed, without costs. In our opinion an award of counsel fee of $1,250 is excessive. The payment of the arrears was not necessary to enable plaintiff to carry on and prosecute the action, and on this motion for alimony and counsel fee pendente lite the court was without power to make such direction. (Beadleston v. Beadleston, 103 N. Y. 402; Bressette v. Bressette, 95 App. Div. 167.) If by reason of the threatened foreclosure plaintiff is compelled to vacate the premises now occupied by her, she may move at Special Term for an increase of alimony. Hagarty, Scudder, Tompkins, Davis and Johnston, JJ., concur. [See ante, p. 534.]
