Opinion
June 1, 1971
In an action for divorce, defendant wife appeals from so much of a judgment of the Supreme Court, Queens County, entered July 2, 1970, as denied her application for alimony and awarded her a counsel fee of only $500. Her notice of appeal states that she seeks to bring up for review so much of an order of the same court, dated December 16, 1969, as denied her motion to examine plaintiff before trial. Appeal from order dismissed, without costs. The order is not properly brought up for review upon appeal from the judgment (CPLR 5501, subd. [a], par. 1; Matter of Seltzer v. Wendell, 11 A.D.2d 805). It would have been reviewable only upon a separate, timely appeal. Judgment modified, on the law and in the exercise of discretion, by striking therefrom the second decretal paragraph, which denied alimony, and substituting in its place a provision awarding appellant alimony of $42.50 per week, commencing as of July 3, 1970. As so modified, judgment affirmed insofar as appealed from, without costs. In our opinion the trial court's denial of alimony to defendant was an improvident exercise of discretion under the circumstances of this case. Shapiro, Acting P.J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.