February 6, 1967
Order of the Supreme Court, Queens County, dated April 29, 1966, modified by (1) striking out the provisions directing defendant to pay temporary alimony and counsel fees and (2) providing that plaintiff's motion is denied as to temporary alimony and that her application for allowance and fixation of counsel fees is referred to the trial court for determination. As so modified, order affirmed, without costs. It appears there exists a subsisting separation agreement, the validity of which cannot be determined on conflictnig affidavits ( Brock v. Brock, 1 A.D.2d 973, and cases there cited). Until such agreement is set aside, temporary alimony and counsel fees for the wife may not be awarded ( Kulok v. Kulok, 20 A.D.2d 568). Beldock, P.J., Ughetta, Christ, Rabin and Munder, JJ., concur.