Campbell v. Campbell , 10 A.D.2d 861 ( 1960 )

In an action for a separation, plaintiff appeals from so much of a judgment entered after trial as dismisses the complaint on the merits. Defendant cross-appeals from so much of the judgment as directs him to pay for the support of plaintiff and grants her a counsel fee. Judgment modified upon the law and the facts by striking therefrom the provisions awarding plaintiff alimony and a counsel fee. As so modified, judgment unanimously affirmed, without costs. Findings of fact insofar as they may be inconsistent herewith are reversed, and new findings are made as indicated herein. In view of the dismissal of the complaint, it was improper for the court to grant alimony and a counsel fee (Civ. Prac. Act, § 1164; Davis v. Davis, 75 N. Y. 221, 224; Kingston v. Kingston, 283 App. Div. 355, 357; Berkowicz v. Berkowicz, 1 A D 2d 1019). It was shown that a counsel fee was not a necessary for which defendant was obligated (Weidlich v. Richards, 276 App. Div. 383, 384; Rubin v. Sorenson, 280 App. Div. 949; Fudin v. Fudin, 7 A D 2d 1021). Present — Nolan, P. J., Ughetta, Christ, Pette and Brennan, JJ.