Opinion
June 14, 1979
Order, Supreme Court, New York County, entered August 17, 1978, modified, on the law, and in the exercise of discretion, to reduce counsel fee to $10,000 for matrimonially related services only, inclusive of those rendered on this appeal, and otherwise affirmed, without costs or disbursements. "The wife is not entitled by statute or case law to have the husband assessed for her defense to his [counterclaim] seeking to impress a trust on real estate." (Thorne v. Thorne, 66 A.D.2d 397, 398.) The remainder of counsel fee as we have set it is strictly for the services rendered in connection with the matrimonial aspects of the case. It may well be that the parties were delayed in settlement of the matrimonial aspects of their suit until they had arrived at a disposition of their disagreement as to ownership of the real estate, but that circumstance does not convert the trust aspects of the case into those services for which the wife may receive counsel fee pursuant to section 237 Dom. Rel. of the Domestic Relations Law. As to the constitutionality of that section, raised for the first time in this case on the appeal, we do not think that, considering the circumstances of the parties, the statute was unconstitutionally applied here.
Concur — Sandler, J.P., Bloom, Lane, Markewich and Ross, JJ.