Hirschberg v. Hirschberg

7 A.D.2d 869, 182 N.Y.S.2d 49, 1959 N.Y. App. Div. LEXIS 10185

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 1959
• Status: Published

Opinion

In an action for a separation, the appeal is from (1) an order entered September 26, 1958 awarding respondent $60 a week alimony pendente lite and $600 counsel fees, and (2) an order entered October 20, 1958 denying appellant’s motion, on additional papers, for leave to renew respondent’s motion. Order entered October 20, 1958 modified by striking from the ordering paragraph “in all respects denied” and by substituting therefor “granted, and on renewal the motion for alimony pendente lite and counsel fees is referred to the trial court for determination”. As so modified, order affirmed, without costs. The unusual facts and circumstances disclosed by this record negative any need for the present award of alimony pendente lite or counsel fees to enable respondent to carry on the action (Rowley v. Rowley, 6 A D 2d 1049). Should the facts as developed on the trial warrant, the trial court can then make an appropriate allowance nunc pro tuna as of the time of the making of the original motion (Doncourt v. Doncourt, 245 App. Div. 91, affd. 275 N. Y. 470). Our holding in this case is to be strictly limited to the facts and circumstances disclosed by this record. It is not to be deemed to constitute a new policy or a precedent for any future holding that temporary alimony and counsel fees must be denied to a wife if she has financial means of her own or is self-supporting. Appeal from order entered September 26, 1958 dismissed, without costs. (Cf. Graffeo v. Graffeo, 7 A D 2d 741; Matter of Sunnydale Farms v. Premium Dairy Co., 7 A D 2d 737.) Nolan, P. J., Murphy, TJghetta, Hallinan and Kleinfeld, JJ., concur.