Opinion
January 26, 1953.
Present — Carswell, Acting P.J., Wenzel, MacCrate, Schmidt and Beldock, JJ.
In an action by plaintiff husband for separation on the ground of cruel and inhuman treatment, based on defendant's drunkenness and abandonment, defendant wife counterclaimed for a separation on the ground of cruel and inhuman treatment, abandonment and failure to support. Judgment dismissing the complaint and awarding separation to defendant on her counterclaim on the ground of cruel and inhuman treatment unanimously affirmed, with costs. No opinion. Appeal from the intermediate order granting defendant the sum of $25 a week as temporary alimony, and leaving the question of counsel fee to the trial court, dismissed, without costs. The order sought to be reviewed is not reviewable under section 580 of the Civil Practice Act. It is not an order which, if reversed, would take away the foundation of the judgment or make the trial and the judgment entered thereon invalid and without support. ( Jones v. Flushing Nat. Bank in N Y, 264 App. Div. 869; Raff v. Koster, Bial Co., 38 App. Div. 336, 338; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N.Y. 284; Peters v. Berkeley, 219 App. Div. 261, 265, 266.)