Diffley v. Diffley

266 A.D. 944, 44 N.Y.S.2d 66

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 1943
• Status: Published

Opinion

Per Curiam.

The parties had been married twenty-seven years when this action was instituted; during the times in question they continuously had their joint family residence and home together in the same apartment in a two-family house; defendant has been paying the plaintiff $45 weekly; the case is on the calendar and will shortly be reached for trial, and defendant doubtless will not refuse to provide reasonable support of his wife and child until the trial. On ^,11 the facts and circumstances disclosed we conclude that the order appealed from should be reversed without costs and the motion for alimony and counsel fees denied on condition that defendant consents that the case be tried when reached in its regular order without any unreasonable delay.

Present-—Martin, P. J., Glennon, Untermyer, Dore and Cohn, JJ.; Untermyer, J., dissents and votes to modify by reducing the alimony to $35 per week and counsel fee to $350.

Order reversed, without costs, and the motion for alimony and counsel fee denied on condition that defendant consents that the case be tried when reached in its regular order without any unreasonable delay.