Opinion
March 18, 1958
Defendant and plaintiff appeal from certain aspects of a temporary alimony order awarding temporary alimony of $300 per week, which further directed a trial preference and permitted plaintiff's application for counsel fees to be withdrawn without prejudice to an application therefor before the trial justice. Defendant appeals from that portion of the order which awards temporary alimony. Plaintiff appeals therefrom "to the extent that the said order denied plaintiff's motion for alimony in excess of the said sum of $300.00 per week and directing said temporary alimony to commence on the 1st day of November, 1957 instead of October 1, 1957", and also from the direction therein for a trial preference. Since it appears that the defendant has continued to support and maintain plaintiff and his daughter in the same style and in the same manner as before the separation, the order appealed from violates the established rule that where plaintiff is being voluntarily so supported, and the support is otherwise reasonable, there is no basis or reason for a pendente lite award of alimony. Pendente lite allowances in matrimonial actions are based on necessity. Where no necessity exists, there is no reason for the order. ( Kaiser v. Kaiser, 262 App. Div. 835; Smith v. Smith, 272 App. Div. 868; Amos v. Amos, 282 App. Div. 692; Valberg v. Valberg, 285 App. Div. 881; Hurwitz v. Hurwitz, 2 A.D.2d 965.) Further, the preference order was improper by reason of the fact that at the time the order preferring the cause was made no certificate of readiness had been filed in accordance with the Special Rule Respecting Calendar Practice. ( Perrone v. Federated Taxpayers Assn., 4 A.D.2d 935.) The order should be reversed on the law and on the facts and in the exercise of discretion and temporary alimony denied, without costs, with leave to the plaintiff to renew in the event the husband fails to substantially maintain the wife and daughter in the style in which he has been doing prior to the commencement of the action. Settle order.
Concur — Botein, P.J., Breitel, Valente, McNally and Stevens, JJ.