Silbert v. Silbert

Decision Date20 May 1965
Docket NumberNo. 1,No. 2,1,2
Citation208 N.E.2d 783,260 N.Y.S.2d 838,16 N.Y.2d 564
Parties, 208 N.E.2d 783 Patricia Wyker SILBERT, Respondent-Appellant, v. Arthur Frederick SILBERT, Appellant-Respondent. (Action) Arthur Frederick SILBERT, Appellant-Respondent, v. Patricia Wyker SILBERT, Respondent-Appellant. (Action)
CourtNew York Court of Appeals Court of Appeals

Appeal from Supreme Court, Appellate Division, Second Department, 22 A.D.2d 893, 255 N.Y.S.2d 272.

Wife brought action against husband for judicial separation, and husband brought action against the wife for conversion and detention of certain furniture and furnishings, and the wife in the husband's action interposed five counterclaims. The actions were consolidated.

The Supreme Court, Special Term, Westchester County, Leonard J. Supple, J., entered a judgment granting the wife a separation from the husband, awarding her custody of three minor children, $125 a week for support and maintenance of the children, and $225 a week for alimony, support and maintenance of herself, and giving her exclusive possession of realty owned by the parties as tenants by the entirety and of household furnishings owned jointly by the parties, and dismissing the complaint of the husband and granting judgment to the wife on her first, second, fourth, and fifth counterclaims, and in the wife's action directing the husband to pay counsel fees to the wife, and both parties appealed.

The Appellate Division modified the judgment on the law and the facts by striking out the paragraph providing that the husband should pay the wife $4,060 with interest on the fourth counterclaim, and by substituting therefor a provision dismissing the fourth counterclaim, and by amending paragraph respecting the fifth counterclaim, so as to direct the husband to pay to the wife $5,000 instead of $7,151.53, and by amending paragraph relating to the allowance of counsel fees, so as to direct the husband to pay to the wife the sum of $5,000 in two installments of $2,500 each, instead of the sum of $8,000 in two installments of $4,000 each.

Both parties appealed to the Court of Appeals.

Erdheim & Armstrong, New York City (Irving I. Erdheim, New York City, of counsel; Leonard C. Shalleck, New York City, on the brief), for appellant.

Squadron, Alter & Weinrib, New York City (David Alter and Dirk S. Gould, New York City, of counsel on the brief), for respondent.

Order affirmed, without costs.

All concur.

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22 cases
  • Douglas v. Latona
    • United States
    • New York Supreme Court
    • January 20, 1970
    ...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 783.) In 1965, the Second Department expressly excised the Michalowski rule (7 N.Y.2d 71, 75, 195 N.Y.S.2d 633, 635, 163 N.E.2d 863......
  • Leibowits v. Leibowits
    • United States
    • New York Supreme Court — Appellate Division
    • May 16, 1983
    ...(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 (Minnus v. Minnus, 63 A.D.2d 966, 405 N.Y.S.2d 504), or by restraining......
  • Childs v. Childs
    • United States
    • New York Supreme Court — Appellate Division
    • July 11, 1979
    ...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. Sharrock v. Dell Buick-Cadillac, 45 N.Y.2d 152, 166-167, 408 N.Y.......
  • Wyman v. Morone
    • United States
    • New York Supreme Court — Appellate Division
    • December 18, 1969
    ...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 than the amount requested in the prayer for relief, citing Mich......
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