Rowley v. Rowley

6 A.D.2d 1049, 179 N.Y.S.2d 269, 1958 N.Y. App. Div. LEXIS 4618

Opinion

In an action for a separation, the appeal is from an order awarding respondent, pendente lite, $50 a week alimony, $500 counsel fees and exclusive occupancy of real property owned by the parties as tenants by the entirety. Order reversed, without costs, and motion denied, with leave to renew the application for a counsel fee on the trial. The moving papers show no necessity for payment of alimony pendente lite or counsel fees to enable respondent to carry on the action, which is an essential legal basis for such an order (Lake v. Lake, 194 N. Y. 179). On the facts presented by the moving affidavits, we believe it was an improvident exercise of discretion to award exclusive possession of the property owned by the parties as tenants by the entirety to respondent prior to a trial and without a hearing. Nolan, P. J., Wenzel, Ughetta, Hallinan and Kleinfeld, JJ., concur.