Edell v. Edell

Appellate Division of the Supreme Court of New York

Edell v. Edell

283 A.D. 1060, 131 N.Y.S.2d 182, 1954 N.Y. App. Div. LEXIS 6320

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 1, 1954

StatusPublished

This text of 283 A.D. 1060 (Edell v. Edell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Edell v. Edell, 283 A.D. 1060, 131 N.Y.S.2d 182, 1954 N.Y. App. Div. LEXIS 6320 (N.Y. Ct. App. 1954).

Pincite

Opinion

In an action for a separation, plaintiff appeals from the judgment, which grants her a separation from defendant, insofar as it provides for the payment of alimony. The appeal is on the ground that the alimony awarded is inadequate, and on the further ground that the payment of a portion of the alimony is made contingent on action by the Federal tax authorities with respect to defendant’s tax returns for the years 1950, 1951 and 1952. Plaintiff also appeals from an order which denied her application to require defendant to pay the cost of procuring the stenographic minutes of the trial, and the printing of the record on this appeal, and to pay a counsel fee on this appeal. Judgment modified on the law and the facts by striking out all provisions thereof, following the first ordering paragraph, and by substituting therefor a direction that defendant pay permanent alimony in the sum of $235 a week, by check, or money order, at plaintiff’s residence, or at any other place she may designate in writing, and as so modified, unanimously affirmed, with costs to appellant. Order modified by striking therefrom the second ordering paragraph, and by substituting therefor a provision that the motion is granted to the extent of directing defendant to pay a counsel fee for the purpose of prosecuting this appeal in the sum of $500, and that the motion is in all other respects denied. As so modified, order affirmed, with $10 costs and disbursements to appellant. In our opinion, under the circumstances disclosed, plaintiff was entitled to alimony in the sum awarded, unconditionally, and it was erroneous to make payment of any part thereof conditional on the action of the tax authorities with respect to defendant’s income for previous years. In view of the erroneous provision of the judgment appealed from, a counsel fee should have been awarded to permit prosecution of the appeal, insofar as it was directed against that provision. Findings of fact, express or implied, inconsistent with the foregoing, are reversed and new findings are made as indicated herein. Present — Nolan, P. J., Adel, MaeCrate, Schmidt and Beldock, JJ.

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In an action for a separation, plaintiff appeals from the judgment, which grants her a separation from defendant, insofar as it provides for the payment of alimony. The appeal is on the ground that the alimony awarded is inadequate, and on the further ground that the payment of a portion of the alimony is made contingent on action by the Federal tax authorities with respect to defendant’s tax returns for the years 1950, 1951 and 1952. Plaintiff also appeals from an order which denied her application to require defendant to pay the cost of procuring the stenographic minutes of the trial, and the printing of the record on this appeal, and to pay a counsel fee on this appeal. Judgment modified on the law and the facts by striking out all provisions thereof, following the first ordering paragraph, and by substituting therefor a direction that defendant pay permanent alimony in the sum of $235 a week, by check, or money order, at plaintiff’s residence, or at any other place she may designate in writing, and as so modified, unanimously affirmed, with costs to appellant. Order modified by striking therefrom the second ordering paragraph, and by substituting therefor a provision that the motion is granted to the extent of directing defendant to pay a counsel fee for the purpose of prosecuting this appeal in the sum of $500, and that the motion is in all other respects denied. As so modified, order affirmed, with $10 costs and disbursements to appellant. In our opinion, under the circumstances disclosed, plaintiff was entitled to alimony in the sum awarded, unconditionally, and it was erroneous to make payment of any part thereof conditional on the action of the tax authorities with respect to defendant’s income for previous years. In view of the erroneous provision of the judgment appealed from, a counsel fee should have been awarded to permit prosecution of the appeal, insofar as it was directed against that provision. Findings of fact, express or implied, inconsistent with the foregoing, are reversed and new findings are made as indicated herein. Present — Nolan, P. J., Adel, MaeCrate, Schmidt and Beldock, JJ.

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Bluebook (online)

283 A.D. 1060, 131 N.Y.S.2d 182, 1954 N.Y. App. Div. LEXIS 6320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edell-v-edell-nyappdiv-1954.