Opinion
June 12, 1961
In an action by the wife for a judicial separation on the ground of cruel and inhuman treatment, the wife appeals: (1) from an order of the Supreme Court, Queens County, dated February 16, 1960, which granted her motion for alimony pendente lite and counsel fee; awarded her alimony of $20 a week on condition that the husband continue to pay the monthly rental and the utility charges (exclusive of telephone) for her apartment; and awarded her a counsel fee of $150, with leave to apply to the trial court for an additional counsel fee; and (2) from a second order, dated the same day, which granted her motion for reargument of her prior motion for alimony and counsel fee and adhered to the original determination, and which also granted the husband's motion to vacate her notice to examine him before trial. The appeal from the orders with respect to the alimony and counsel fee is taken on the ground that the allowances made are inadequate. The appeal from the first order is dismissed. Such order was superseded by the second order granting reargument. The second order is affirmed, without costs. In her notice of examination, the wife sought to examine the husband before trial with respect to the allegations of the complaint which he has denied in his answer and "especially with respect to his present financial condition". Such notice was properly vacated. The husband in his answer admits the allegation in the complaint as to his earnings. Hence, examination as to such allegation is not material and necessary ( Johansen v. Gray, 279 App. Div. 108). Moreover, the wife has not shown the existence of any special circumstances to warrant the examination ( Campbell v. Campbell, 7 A.D.2d 1011). Nolan, P.J., Beldock, Ughetta, Pette and Brennan, JJ., concur.