Opinion
December 29, 1975
Appeals by petitioner-plaintiff's former husband (1) from an order of the Family Court, Westchester County, dated October 20, 1974, which, in a support proceeding, directed him to pay petitioner $125 per week for her support and also to pay her certain sums for medical, legal and household expenses, (2) from a prior intermediate support order of the same court, dated December 11, 1973, and (3) from so much of a divorce judgment of the Supreme Court, Westchester County, entered July 18, 1975, as, in an action, awarded to plaintiff alimony of $332 per week and directed the entry of judgment in favor of plaintiff for $32,000; and plaintiff cross-appeals from so much of the judgment as denied her an interest in certain mortgages and property. Orders and judgment affirmed insofar as appealed from, with one bill of costs to petitioner-plaintiff to cover all the appeals. The orders of the Family Court are entirely proper and supported by the evidence in the record. As to the alimony awarded plaintiff by Special Term, we hold that in view of defendant's conduct and testimony during the trial of the action for a divorce it was proper for the court to base its determination upon proof of plaintiff's needs (see Kay v Kay, 37 N.Y.2d 632). The $32,000 awarded plaintiff in the judgment is also supported by the evidence in the record. Finally, plaintiff's claim to an interest in certain mortgages as an inter vivos gift cannot be sustained in the absence of proof of donative intent and delivery of the mortgages by defendant (see Matter of Kelly, 285 N.Y. 139; Matter of Scherzinger, 272 App. Div. 722, affd 298 N.Y. 521). Hopkins, Acting P.J., Martuscello, Cohalan, Brennan and Munder, JJ., concur.