18 A.D.2d 684 | N.Y. App. Div. | 1962
In an action for a separation, the plaintiff wife appeals from so much of an order of the Supreme Court, Dutchess County, entered September 24, 1962, as denied her temporary alimony and counsel fee and an allowance “for investigative services” with leave to apply at Special Term or to the trial court for such alimony and counsel fee in the event “the litigation becomes protracted or plaintiff’s financial condition materially alters”. Order modified by striking out its first decretal paragraph denying plaintiff’s motion as to the temporary alimony and counsel fees, and by substituting therefor: (a) a provision granting the motion with respect to temporary alimony and counsel fee; (b) a provision directing defendant to pay to plaintiff, pendente lite, $100 a week for her support, commencing as of the date of the commencement of the action; and (c) a provision directing defendant, within 20 days after entry of the order hereon, to pay plaintiff $2,000 for her counsel fee, without prejudice to an application by plaintiff upon the trial of this action for an additional counsel fee. As so modified, order, insofar as appealed from, affirmed, with $10 costs and disbursements. The fact that the wife has some money does not necessarily bar her from an allowance for her support and for counsel fee. That circumstance and all other relevant factors, including the defendant’s financial position and the probability of plaintiff’s ultimate success upon the trial, should have been taken into consideration (Merritt v. Merritt, 99 N. Y. 643; Waterman v. Waterman, 147 App. Div. 464). Our awards of alimony and counsel fee on this appeal, which are based on the affidavits, are not intended to influence or to otherwise affect the trial court in determining whether or in what amount permanent alimony and additional counsel fee should be awarded. Its awards, if any, should be based upon the proof adduced at the trial (cf. Novack v. Novack, 15 A D 2d 671; Smith v. Smith, 6 A D 2d 818). Beldock, P. J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.
