Schultz v. Schultz , 1 A.D.2d 930 ( 1956 )

Order entered June 1,1955, as modified by order entered June 21, 1955, affirmed with $10 costs and disbursements. All concur, except Kimball, J., who concurs as to the provision for counsel fees but dissents and votes for reversal of the order insofar as it allows temporary alimony, in the following memorandum: Insofar as the order appealed from allows alimony pendente lite in this action by the wife for a separation, I dissent. When the plaintiff commenced this action, both parties were living at the marital domicile. Under such circumstances, I do not think the plaintiff wife is entitled to temporary alimony. (Berman v. Berman, 277 App. Div. 560; Sommer v. Sommer, 285 App. Div. 809; Friedman v. Friedman, 285 App. Div. 938.) (Appeal from two orders of Niagara Special Term (1) granting temporary alimony for the support of plaintiff and her son, and counsel fees, and (2) denying defendant’s motion to modify the previous order and directing plaintiff to pay from the temporary alimony certain expenses as to the real estate of which she was given the use.) Present — McCurn, P. J., Kimball, Wheeler and Williams, JJ.