Silbert v. Silbert

Decision Date07 December 1964
Citation22 A.D.2d 893,255 N.Y.S.2d 272
PartiesPatricia Wyker SILBERT, Respondent, v. Arthur Frederick SILBERT, Appellant.
CourtNew York Supreme Court — Appellate Division

Erdheim & Armstrong, New York City, for appellant; Irving I. Erdheim, New York City, of counsel.

Squadron, Alter & Weinrib, New York City, for respondent; David Alter, New York City, of counsel.

Before UGHETTA, Acting P. J., and KLEINFELD, BRENNAN, HILL and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

In consolidated actions (1) by the wife against the husband, for a judicial separation (Action No. 1); and (2) by the husband against the wife, for the conversion and detention of certain furniture and furnishings (Action No. 2), in which the wife interposed five counterclaims, the parties cross-appeal as follows from a judgment of the Supreme Court, Westchester County, entered August 5, 1964 upon the decision and opinion of the court after a nonjury trial:

(1) The husband appeals from the judgment insofar as it is in the wife's favor in both actions;

(2) The wife appeals, on the ground of inadequacy, from so much of the judgment as: (a) awarded $125 per week for the support of the minor issue of the marriage; (b) allowed $7,151.53 on her fifth counterclaim; and (c) allowed counsel fees in the sum of $8,000. The wife has not appealed from the dismissal of her third counterclaim.

Judgment modified on the law and the facts as follows: (a) by striking out the tenth decretal paragraph, providing that the husband pay the wifethe sum of $4,060, with interest, on the fourth counterclaim, and by substituting therefore a provision dismissing said fourth counterclaim; (b) by amending the eleventh decretal paragraph, respecting the fifth counterclaim, so as to direct the husband to pay to the wife the sum of $5,000 thereon, instead of $7,151.53; and (c) by amending the twelfth decretal paragraph, respecting the allowance of counsel fees, so as to direct the husband to pay to the wife the sum of $5,000 in two instalments of $2,500 each, instead of the sum of $8,000 in two instalments of $4,000 each.

As so modified, judgment, insofar as appealed from by the respective parties, affirmed, without costs. Findings of fact which may be inconsistent herewith are reversed, and new findings are made as indicated herein.

It is our opinion that the record presents questions of fact as to whether the husband was guilty of abandonment and cruel and inhuman treatment as alleged in the amended complaint, and that the trial court's findings in the wife's favor on the factual issues should not be disturbed (cf. Diemer v. Diemer, 8 N.Y.2d 206, 207, 203 N.Y.S.2d 829, 831, 168 N.E.2d 654, 656; 1 Nelson, Divorce and Annulment [2nd ed.] §§ 6.20, 6.24; Amend v. Hurley, 293 N.Y. 587, 594, 59 N.E.2d 416, 418). The wife's endurance of the husband's wrongful conduct, up to the time of the separation, did not constitute a condonation thereof (cf. Fisher v. Fisher, 223 App.Div. 19, 22, 227 N.Y.S. 345, 349, affd. 250 N.Y. 313, 165 N.E. 460, 61 A.L.R. 1523).

On the record presented we believe the trial court's award of $225 per week as alimony for the wife and $125 per week for the support and maintenance of the three infant children of the parties was proper. However, we are of the opinion that the allowance of $8,000 for counsel fees was excessive. An award may be made only for the services rendered in the separation action (cf. Domestic Relations Law, § 237; Griffin v. Griffin, 275 App.Div. 541, 542, 90 N.Y.S.2d 596, 597); and, in our opinion, $5,000 would be adequate compensation for such services.

It is also our opinion that the husband's action for the return of the furniture and furnishings taken by the wife, or for damages, was properly dismissed. The proof supports the court's finding that the property was 'the joint property of the parties,' and the court was justified in awarding possession of the property to the wife, as permitted by statute (Domestic Relations Law, § 234). The proof also sustains the court's findings in the wife's favor on her first two counterclaims, for one-half of 3,333 shares of stock in the joint names of the parties and for one-half the dividends thereon.

We are of the opinion, however, that the proof was insufficient to...

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25 cases
  • Douglas v. Latona
    • United States
    • New York Supreme Court
    • January 20, 1970
    ...205 N.Y.S.2d 416, 417.) In 1964, the Second Department's holding was affirmed, without comment, by the Court of Appeals. (Silbert v. Silbert, 1964, 22 A.D.2d 893, 895, #15, 255 N.Y.S.2d 272, 276, aff'd. 16 N.Y.2d 564, 260 N.Y.S.2d 838, 208 N.E.2d In 1965, the Second Department expressly exc......
  • Leibowits v. Leibowits
    • United States
    • New York Supreme Court — Appellate Division
    • May 16, 1983
    ...Scampoli, 37 A.D.2d 614, 323 N.Y.S.2d 627), or personal property (Troiano v. Troiano, 87 A.D.2d 588, 447 N.Y.S.2d 753; Silbert v. Silbert, 22 A.D.2d 893, 255 N.Y.S.2d 272, affd. 16 N.Y.2d 564, 260 N.Y.S.2d 838, 208 N.E.2d 783), by excluding one spouse from premises occupied by another (Minn......
  • Childs v. Childs
    • United States
    • New York Supreme Court — Appellate Division
    • July 11, 1979
    ...fees absent new and constitutional legislative action (see Lambert v. Lambert, 45 A.D.2d 715, 356 N.Y.S.2d 94, citing Silbert v. Silbert, 22 A.D.2d 893, 255 N.Y.S.2d 272, affd. 16 N.Y.2d 564, 260 N.Y.S.2d 838, 208 N.E.2d 783, and Blaine v. Blaine, 20 A.D.2d 903, 248 N.Y.S.2d 960; cf. Sharro......
  • Wyman v. Morone
    • United States
    • New York Supreme Court — Appellate Division
    • December 18, 1969
    ...concede, however, that permission to increase the Ad damnum clause lies within the sound discretion of the court. In Silbert v. Silbert, 22 A.D.2d 893, 255 N.Y.S.2d 272, affd. 16 N.Y.2d 564, 260 N.Y.S.2d 838, 208 N.E.2d 783), it was held that there could be no recovery for a sum greater tha......
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