Rothenberg v. Rothenberg

8 A.D.2d 703, 185 N.Y.S.2d 594, 1959 N.Y. App. Div. LEXIS 8647

Opinion

Order granting temporary alimony and counsel fees unanimously reversed on the facts, and in the exercise of discretion, with $20 costs and disbursements to the appellant, and the motion denied, with $10 costs. Although temporary alimony may be allowed in exceptional circumstances where the parties occupy the same domicile, as for example, where they own a home as tenants by the entirety and a showing of necessity for the wife remaining in the domicile is made (Brous v. Brous, 283 App. Div. 1050), the general rule followed in this Department is that a judgment of separation will not be granted where it is shown the parties continue to live in the same premises (Berman v. Berman, 277 App. Div. 560). In this separation action based on cruelty and nonsupport, plaintiff continues to live in the same apartment with defendant. She does not demonstrate the necessity for so doing. Concur — Breitel, J. P., Rabin, Valente, Stevens and Bergan, JJ.