78 N.Y.S. 304 | N.Y. App. Div. | 1902
The moving papers disclose that the plaintiff recovered a judgment against the defendant of separation, with an award of alimony at the rate of $780 per year for her support and maintenance, together with the taxable costs and disbursements of the action. Judgment was entered therein on the 24th day of June, 1901, and on the iifteentli day of July thereafter the defendant duly appealed from such judgment and gave an undertaking as required by law to procure a stay of proceedings. It further appears that no application was made for an award of alimony and counsel fees pendente lite, and the defendant has never complied with the judgment either by the payment of the alimony awarded or of costs. The moving papers disclose a case where it would have been proper to award to the plaintiff both alimony and counsel fees, and, in vie.w of the award of judgment in her favor directing the payment of alimony, and the fact that up to this point in the litigation no alimony or counsel fees have been awarded, a case seems to have been presented which
The appeal in that case was dismissed by the. Court of Appeals upon the ground that the order was not final, and, therefore, on appeal would lie to the Court of Appeals (119 N. Y. 519); but as the question of power in the court to award alimony and counsel fees after judgment and upon appeal had been elaborately discussed, the court assumed to determine such question and in all substantial respects affirmed the reasoning of the General Term. This court upon this appeal has the power to do what the Special Term should have done in disposition of the application: (Bennett v. Lake, 47 N. Y. 93; Griffin v. Helmbold, 72 id. 437; Arnold v. Rothschild's Sons Co., 23 App. Div. 221.)
We conclude that the motion should have been granted and that the defendant should be directed to pay the sum of $15 per week as alimony, to date from the entry of the judgment in the action, such sum, however, to be credited upon the amount of the award of alimony directed to be paid by the judgment in the event that it should be finally established upon'the appeal, and the further sum of $200 counsel fees.
The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted as expressed in this opinion.
Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements^ and motion granted as stated in opinion.
