Opinion
December 8, 1953.
Appeal from Supreme Court, New York County.
In this case, before the order appealed from was made, plaintiff's right to a separation against defendant was already determined by the Trial Justice after a trial; the sole remaining issue was that which the Trial Justice referred to an Official Referee, in the meanwhile providing a tentative alimony per week without prejudice to revision on the coming in of the report of the Official Referee. In view of these facts and of the varied and numerous business interests of appellant, we may not say in the light of the exceptional and unusual circumstances disclosed, that Special Term in granting the order appealed from, abused its discretion.
However, in the interest of noting what should have been orderly procedure herein the motion in the first instance should have been referred to the Justice who tried the case, appointed the Referee and fixed the tentative alimony. But for the reasons herein above stated and to avoid an unnecessary additional motion, the order appealed from should be affirmed.
Peck, P.J., Dore, Cohn, Callahan and Botein, JJ., concur.
Order unanimously affirmed. The date for the examination to proceed shall be fixed in the order. Settle order on notice.