Rubino v. Rubino , 195 N.Y.S.2d 845 ( 1959 )

— In an action for a separation, the appeals are (1) -from a judgment granting respondent a Separation, directing appellant to pay respondent $50 a week for her support and maintenance, and directing that respondent have judgment for $3,120 for arrears of temporary alimony under an order therefor entered November 22, 1954, and (2) from said order, Order reversed, without costs, and motion for temporary alimony denied. Judgment modified upon the law and the facts by striking 'therefrom the second decretal paragraph and by striking from the third decretal paragraph the figure “ $50.00 ” and by Substituting therefor the figure “ $35.00 ”. As so modified, judgment Unanimously affirmed, without costs. Findings of fact insofar as they may be inconsistent herewith are reversed, and new findings are made as indicated herein. From the papers on the motion for temporary alimony it appears that respondent possessed cash assets of about $38,000, about $14,000 of which had been Withdrawn by her from joint savings bank accounts of the parties several weeks before the commencement of the action, that appellant’s remaining assets were meager, and that no clear showing Was made that appellant’s earnings Were more than modest. Under the circumstances, we are of opinion that respondent did not satisfy the burden of showing that she was dependent upon appellant for support during the pendency of the action, and therefore the motion should have been denied (see Collins v. Collins, 80 N. Y. 1; Wightman v. Wightman, 7 A D 2d 8595 Wysenbeeh v. Wysenbeeh, 286 App¡ Div. 863). As to permanent alimony, we have taken into consideration respondent’s income and assets (see Phillips v. Phillips, 2 N Y 2d 742), together with all the other evidence, and are of opinion that the award was excessive insofar as it was for more than $35 a Week. Present — Nolan, P. J., Wenzel, Beldock, Ughetta and Hallinan, JJ.