Opinion
June 13, 1955.
In an action for separation, defendant appeals from an order made on reargument insofar as it grants plaintiff's motion for alimony pendente lite, and plaintiff appeals from said order insofar as it denies her motion for counsel fees. Order modified by striking therefrom the first ordering paragraph, by striking from the third ordering paragraph everything following the word "reargument" and by substituting in place thereof a provision that the motion for temporary alimony and counsel fees be denied, and by striking from said order the fourth ordering paragraph and by substituting in place thereof a provision that the denial of plaintiff's motion insofar as it relates to temporary alimony is without prejudice to the right of the plaintiff to make application therefor, either during the pendency of the action upon showing a necessity therefor, or in the event defendant pursues dilatory tactics and does not co-operate fully in securing a prompt trial of the action, or upon the trial. As so modified, order affirmed, without costs. While there is a sharp conflict between the parties as to the amount of their income and resources, it appears that plaintiff is possessed of rather substantial independent assets and in addition has in her possession $7,614 remaining of moneys given her by defendant for household and other expenses. The disputed facts can be resolved more truly and efficiently upon trial than upon motion papers, and the trial court has ample power to make its decision with due regard to the rights of the parties and the circumstances as they may appear at the time of trial. ( Schubert v. Schubert, 284 App. Div. 887; see, also, Lake v. Lake, 194 N.Y. 179; Match v. Match [[Appeal No. 1], 242 App. Div. 782; Goodale v. Goodale, 225 App. Div. 791.) Nolan, P.J., Wenzel, Schmidt, Murphy and Ughetta, JJ., concur.