Opinion
November 20, 1944.
In an action for separation plaintiff moved for temporary alimony, counsel fees and for an order directing that defendant be enjoined from prosecuting in any foreign State any action regarding the marital status of the parties. The court granted the motion and directed that the issues concerning the extent of defendant's income and resources be referred to an official referee to hear and report with his recommendations as to the amount to be paid plaintiff for her support and maintenance and counsel fees. The order also directed that pending the report of the official referee the defendant continue to pay the household expenses, carrying charges on the premises occupied by the parties, and also pay plaintiff fifty dollars weekly for her support and maintenance, as well as five hundred dollars "on account of Counsel Fees." Since it is admitted that the parties are residing in the same house, owned jointly by them, and that defendant is paying the carrying charges on the house and also the household expenses and, in addition, is paying plaintiff thirty dollars a week, it was improvident to direct the payment of alimony pendente lite. (9 Carmody's New York Pleading and Practice, p. 428; Diffley v. Diffley, 266 App. Div. 944; Maurer v. Maurer, 263 App. Div. 290; Bruggemann v. Bruggemann, 191 App. Div. 689; Smith v. Smith, 92 App. Div. 442. ) Plaintiff, however, is entitled to a counsel fee to prosecute the action. ( Kaiser v. Kaiser, 262 App. Div. 835; Smith v. Smith, supra.) Order modified on the law and the facts by striking out the provision for the payment of alimony pendente lite, and, as so modified, the order is affirmed, without costs. If there be a change of circumstances due to the failure of defendant to continue to pay the household expenses, the carrying charges on the house, and the thirty dollars weekly to plaintiff, she may make a new application at Special Term. The case should be noticed for trial as soon as possible. Settle order on notice. Close, P.J., Hagarty, Johnston, Adel and Aldrich, JJ., concur.