Tate v. Tate , 422 N.Y.S.2d 709 ( 1979 )

Order, Supreme Court, New York County, entered April 23, 1979, and judgment entered thereon on April 30, 1979, unanimously affirmed without opinion. Order, Supreme Court, New York County, entered July 6, 1979, insofar as it awarded plaintiff a counsel fee in the sum of $1,000 and denied plaintiff’s application for an order requiring defendant to post a surety bond "without prejudice to a renewal in the event that defendant does not diligently prosecute his appeal,” unanimously modified, on the facts and in the exercise of discretion, to strike the provision for a counsel fee and the provision relating to diligent prosecution of defendant’s appeal. As so modified, the order is affirmed, without costs. The circumstances disclosed in the present record do not justify the award of an additional counsel fee. Nor was it appropriate for Special Term to condition the denial of the primary relief sought by plaintiff upon defendant’s diligent prosecution of an appeal. Such is the prerogative of the Appellate Division. Concur—Murphy, P. J., Kupferman, Birns, Sandler and Sullivan, JJ.