Hirschberg v. Hirschberg
| Decision Date | 26 January 1959 |
| Citation | 182 N.Y.S.2d 49,7 A.D.2d 869 |
| Parties | Frances HIRSCHBERG, Respondent, v. Dr. Sidney HIRSCHBERG, Appellant. |
| Court | New York Supreme Court — Appellate Division |
H. Stuart Klopper, Jamaica, for appellant.
Joseph N. Friedman, New York City, for respondent.
Before NOLAN, P. J., and MURPHY, UGHETTA, HALLINAN and KLEINFELD, JJ.
MEMORANDUM BY THE COURT.
In an action for a separation, the appeal is from (1) an order entered September 26, 1958 awarding respondent $60 a week alimony pendente lite and $600 counsel fees, and (2) an order entered October 20, 1958 denying appellant's motion, on additional papers, for leave to renew respondent's motion.
Order entered October 20, 1958 modified by striking from the ordering paragraph 'in all respects denied' and by substituting therefor 'granted, and on renewal the motion for alimony pendente lite and counsel fees is referred to the trial court for determination'. As so modified, order affirmed, without costs.
The unusual facts and circumstances disclosed by this record negative any need for the present award of alimony pendente lite or counsel fees to enable respondent to carry on the action (Rowley v. Rowley, 6 A.D.2d 1049, 179 N.Y.S.2d 269). Should the facts as developed on the trial warrant, the trial court can then make an appropriate allowance nunc pro tunc as of the time of the making of the original motion (Doncourt v. Doncourt, 245 App.Div. 91, 281 N.Y.S. 535, affirmed 275 N.Y. 470, 11 N.E.2d 302).
Our holding in this case is to be strictly limited to the facts and circumstances disclosed by this record. It is not to be deemed to constitute a new policy or a precedent for any future holding that temporary alimony and counsel fees must be denied to a wife if she has financial means of her own or is self-supporting.
Appeal from order entered September 26, 1958 dismissed, without costs. Cf. Graffeo v. Graffeo, 2d Dept., 7 A.D.2d 741, 180 N.Y.S.2d 844; Sunnydale Farms v. Premium Dairy Co., 2d Dept., 7 A.D.2d 737, 180 N.Y.S.2d 663.
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