Opinion
April 22, 1965
Order, entered on December 21, 1964, unanimously modified, on the law, on the facts, and in the exercise of discretion, to strike the provision that the denial of the motion is without prejudice to any other action and further relief plaintiff may have in the premises, and, in lieu thereof, to provide that the plaintiff may apply at Special Term for counsel fees in connection with defendant's motion to modify the judgment of separation, such application to be made to Special Term on the filing of the Referee's report; and order otherwise affirmed, without costs and without disbursements. The direction in the order appealed from which would permit the plaintiff to take other action was unnecessary and improper. (Cf. Handelman v. Peabody, 285 App. Div. 689.) There is statutory authority for the awarding of counsel fees in connection with an application to modify a judgment of separation as to alimony and maintenance of children of the marriage. (Domestic Relations Law, §§ 236, 237.) The present record, however, will not support an award to the plaintiff for counsel fees in connection with the defendant's motions. But, it appears from the briefs that there is pending a motion by defendant to modify the judgment of separation to reduce the alimony and support provisions for the children and that the motion has been referred to a Referee. The determination here should be without prejudice to an application for counsel fees in connection with such motion, and plaintiff, if she be so advised, may make such application to Special Term on the filing of the Referee's report.
Concur — Botein, P.J., Breitel, McNally, Stevens and Eager, JJ.