Noreen M. Palette, Respondent, v. Frank A. Palette, Appellant, 22 A.D.2d 705

In an action by a wife for a judicial separation, in which the defendant husband moved to amend his answer to allege as a defense the wife’s adultery, and in which the wife made a cross motion for temporary alimony, counsel fees and custody of their infant child, the husband appeals from so much of an order of the Supreme Court, Queens County, dated June 18, 1964, as: (

a) granted to the wife $75 a week as temporary alimony, a $750 counsel fee, and custody of the child; and (to) required the husband to pay an additional counsel fee of $75 and $10 costs as a condition to the granting of his motion to amend his answer.

Order modified as follows: (1) by striking out from its first decretal paragraph the provision requiring defendant to pay $75 as a counsel fee and $10 costs as a condition to amending his answer; (2) by striking out the third and fourth decretal paragraphs awarding to plaintiff custody of the infant and fixing the defendant’s visitation rights; (3) by reducing the amount of temporary alimony from $75 to $50 per week; (4) by reducing the amount of the counsel fee from $750 to $250; and (5) by adding a provision directing that the issues of permanent alimony, further counsel fees and custody of the infant be left for determination by the trial court.

As so modified, order, insofar as appealed from, affirmed, without costs. The defendant’s time to serve the amended answer is extended until 20 days after entry of the order hereon. In our opinion, the issues presented as to alimony, counsel fee and custody should have been reserved for determination by the trial court. In any event, under all the facts and circumstances disclosed by this record, we believe that the present awards for alimony and counsel fee were excessive, and that it was an improvident exercise of discretion to require the defendant to pay the sum of $85 as a condition to amending bis answer.

This case should be tried at the earliest possible date. Application by the plaintiff, made on argument of the appeal, to vacate the conditional stay heretofore granted by this court on J.uly 10, 1964, denied. Beldoek, P. J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.

Respondent.— In an action for divorce, in which an interlocutory judgment was obtained by the plaintiff husband in his favor against the defendant wife, the husband appeals from an order of the Supreme Court, Nassau County, dated May 29,1964, which granted the wife’s motion and directed him to supply to her, at Ms expense, a typewritten transcript of the stenographic minutes of the trial on the issues of adultery and condonation; such transcript to be used by her for the purposes of an appeal. Order reversed, without costs; and motion denied.

In our opinion, the wife failed to show a reasonable probability of success in prosecuting her appeal; hence, the motion should have been denied (Reiss v. Reiss, 18 A D 2d 1105). Ughetta, Acting P. J., Christ, Brennan, Hill and Hopkins, JJ., concur.