Schubert v. Schubert , 134 N.Y.S.2d 492 ( 1954 )

The issues in this action for divorce and separation should not be involved nor protracted, and since a note of issue has been filed, if both parties co-operate they can obtain an early trial. From the papers on this motion for alimony and counsel fee it is clear that plaintiff wife has an assured, substantial income of her own with which to support herself pending trial. However, there is sharp and perhaps irreconcilable conflict as to the husband’s income and resources. These 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 rights of the parties that might arise in the interval between the commencement of the action and the trial. Under the circumstances, therefore, and in the proper exercise of discretion, the order granting plaintiff’s motion for alimony and counsel fee is unanimously modified to the extent of striking the provisions for temporary alimony therefrom and otherwise affirmed (Patterson v. Patterson, 4 App. Div. 146; Collins v. Collins, 80 H. Y. 1; Goodale V. Goodale, 225 App. Div. 791). Either party may have an early trial upon request. Present— Cohn, J. P., Callahan, Breitel, Bastow and Botein, JJ.