Benjamin v. Benjamin , 12 A.D.2d 714 ( 1960 )

Appeal from an order of a Special Term, Supreme Court, Sullivan County. Appellant husband has been directed by the court at Special Term to pay $35 a week temporary alimony for the support of his wife and a young infant child; and $359 counsel fees in this separation action. Although he complains of the order for $359 counsel fees, the defendant’s affidavit before the Special Term stated that the $359 sought for this purpose was “ extremely reasonable ” and “ consistent with my financial condition ”. The right to temporary alimony is demonstrated on the record. Defendant admits leaving plaintiff at the place where the parties lived together and not supporting her thereafter. Whether she should have moved with him as the husband says she should; or whether she was given no opportunity and there was just a plain abandonment, are issues for the trial. There is some difference between the parties as to the husband’s earnings. The wife says he earns $99 a week; the husband says this is only in the Summer season and in the Winter he earns $69. Counsel has attached an affidavit to his brief which was not before the court at Special' Term and which is no part of the record. If the actual earnings of defendant do not warrant $35 a week, this can be demonstrated at the trial which should be held at an early date. If no trial has been had at the end of the next term in Sullivan County, attributable to plaintiff, defendant may apply for a modification of the order as to temporary alimony. Order unanimously affirmed, without costs.