Sullivan v. Sullivan

285 A.D. 967, 138 N.Y.S.2d 648, 1955 N.Y. App. Div. LEXIS 6322

Opinion

In an action to set aside a separation agreement and for a judicial separation and other relief, defendant appeals from an order granting plaintiff’s motion for alimony pendente lite and counsel fees. Order modified by striking therefrom everything following the words “and it hereby is” in the first ordering paragraph, and by adding thereto a provision that the motion be referred to the trial court for disposition. As so modified, order affirmed, without costs. Plaintiff is not entitled to the relief sought by this motion unless the question whether the separation agreement is valid and enforeible is first decided adversely to defendant. Such determination may not be made on the pleadings and conflicting affidavits herein and should, therefore, be left to the trial court. (Reeve V. Reeve, 279 App. Div. 618.) Wenzel, Acting P. J., MacCrate, Schmidt, Beldock and Ughetta, JJ., concur.