Opinion
January 26, 1976
In a matrimonial action in which a judgment of divorce was granted, defendant appeals from an order of the Supreme Court, Westchester County, dated March 28, 1975, which granted plaintiff's motion for counsel fees upon a prior appeal to this court (see Kay v Kay, 45 A.D.2d 1018) and for disbursements in connection therewith to the extent of awarding a counsel fee in the amount of $7,500 and disbursements in the total amount of $7,165.07. Order modified, by deleting (1) so much of the first decretal paragraph thereof as follows the words "appeal to the Appellate Division" and (2) the amount "$14,665.07" from the second decretal paragraph thereof and substituting therefor the amount "$7,500". As so modified, order affirmed, without costs. The award to the plaintiff of disbursements expended in the perfecting of the prior appeal to this court was contrary to the rules of this court and to the CPLR in view of this court's order, in that appeal, that the disposition was "without costs" (see CPLR 8301; rule 670.1 of the Rules of the Appellate Division, Second Department, 22 NYCRR 670.1). We have taken note of the decision of the Appellate Division, First Department in the case of People ex rel. Hinckley v Hinckley ( 31 A.D.2d 740), but are not persuaded by its reasoning. Gulotta, P.J., Latham, Margett, Damiani and Christ, JJ., concur.