Solomon v. Solomon , 10 N.Y.S.2d 251 ( 1939 )

Judgment modified by striking out the provision granting defendant a separation on his counterclaim, and the counterclaim dismissed, without costs, JA the ground that the evidence discloses that plaintiff had not abandoned defi 'dant; and, as so modified, the judgment is affirmed, without costs. Findings of Set and conclusions of law will be made. Davis, Adel and Close, JJ., concur; Hagarty and Carswell, JJ., dissent and vote to affirm. (Boyd v. Boyd, 252 N. Y. 422, 429.) Order denying motion of plaintiff for temporary alimony and for an allowance for counsel fees and expenses incident to the appeal from the judgment, reversed on the law and the facts, without costs, and motion granted, without costs, to the extent of directing that defendant pay to plaintiff the sum of $750 for stenographer’s minutes and printing expenses in prosecuting the appeal, and the sum of $500 as counsel fees. We are of opinion that plaintiff is entitled to her disbursements and reasonable counsel fees in view of the fact that she has prevailed in her appeal from that part of the judgment awarding defendant judgment on his counterclaim. Davis, Adel and Close, JJ., concur; Hagarty and Carswell, JJ., dissent and vote to affirm. — Settle order on notice.