Opinion
November 9, 1964
In an action by a wife for a judicial separation, the defendant husband appeals from an order of the Supreme Court, Queens County, dated July 28, 1964, which awarded plaintiff $150 per week temporary alimony and a counsel fee of $1,250. Order modified by reducing the temporary alimony from $150 to $50 per week, and by reducing the counsel fee from $1,250 to $400, with leave to the plaintiff, if so advised, to apply to the trial court for an additional counsel fee. As so modified, order affirmed, without costs. In our opinion, upon the basis of the facts — insofar as they can be ascertained from the conflicting affidavits on this record — the awards for alimony and counsel fee made at Special Term were excessive. The present awards, based on conflicting affidavits, should have no effect upon the Trial Justice in his determination as to the permanent alimony and as to the additional counsel fee, if any. His determination should rest upon the proof adduced at the trial ( Goldberg v. Goldberg, 20 A.D.2d 806). Ughetta, Acting P.J., Christ, Brennan, Hill and Hopkins, JJ., concur.