Fontaine v. Fontaine , 267 N.Y.S.2d 180 ( 1965 )

In an action by a wife for a judicial separation, the husband appeals from an order of the Supreme Court, Kings County, entered October 5, 1965, which granted the wife’s motion for temporary alimony and counsel fees and directed that (1) the husband pay $68 per week to the wife for her support and the support and maintenance of their three children; (2) the husband pay counsel fees of $750; and (3) upon receipt of the first installment of counsel fees in the sum of $375, plaintiff place the case on the calendar for trial. Order modified by striking out its third and fourth decretal paragraphs and substituting therefor provisions directing that defendant pay to the plaintiff the sum of $375 as a counsel fee, with leave to the plaintiff to apply to the trial court for an additional counsel fee if it is justified by the proof adduced on the trial. As so modified, order affirmed, without costs. The time for the payment of such counsel fee is extended until 10 days after entry of the order hereon. In our opinion, on this record the award of counsel fees of $750 was excessive. Under the circumstances, the interests of the parties would best be served by a speedy trial. This award, based as it is on conflicting affidavits, “should have no effect upon the Trial Judge in his determination as to whether permanent alimony should be awarded and the amount thereof, if awarded ” (Dubin v. Dubin, 14 A D 2d 923). Beldock, P. J., Brennan, Hill, Hopkins and Benjamin, JJ., concur.