Shirley Margel, Respondent, v. Harold S. Margel, Appellant, 22 A.D.2d 919

In an action for a judicial separation, the defendant husband appeals: (1) from so much of an order of the Supreme Court, Westchester County, dated April 29, 1964, as granted $125 per week for temporary alimony to the plaintiff wife; and (2) from so much of an order of said court, made June 23, 1964 upon rearguement, as adhered to .the original decision with respect to such alimony. Appeal from order of April 29, 1964 dismissed, without costs; such order was superseded by the later order granting the defendant’s motion for reargument.

Order of June 23, 1964 modified on the facts by amending its decretal paragraph so as to -provide that the plaintiff's motion for temporary alimony is referred to the .trial court for its determination upon the basis of the proof adduced upon the trial. As so modified, the order, insofar as appealed from, is affirmed, without costs. On ¡the record before us, there appears no sufficient likelihood of plaintiff’s success, nor sufficient need on her part or adequate means on the defendant’s part, to justify the award of temporary alimony here made.

If warranted by the proof adduced upon the trial, however, the trial court may make an appropriate allowance nunc pro tuna as of the return day of the original motion for alimony pendente lite (Hirschberg v. Hirschberg, 7 A D 2d 869). The decision upon this appeal is without prejudice to any such determination. Beldóek, P. J., Kleinfeld, Hill, Rabin and Hopkins, JJ., concur.