Gladstone v. Gladstone 23 A.D.2d 649

Order, entered on December 9, 1964, granting plaintiff wife’s motion for temporary alimony and counsel fee in an action for separation, unanimously reversed, on the law, on the facts, and in the exercise of discretion, without costs and without disbursements to either party, but with leave to plaintiff wife to apply to the trial court for the relief sought on the motion. The parties were married in 1959 and physically separated in 1963. There was no issue of the marriage. Both parties had been previously married and the wife has a son who is being supported by the prior husband. The husband supported the wife at a rate of approximately $1,011 per month after the physical separation but before he allegedly discovered post-separation misconduct by the wife. The wife has substantial assets and at one time during the marriage, at least, was interested in a business. Because of the heavily disputed issues, the fact that the wife has available assets, and because an early trial is indicated, as noted by Special Term, there is no necessity for the temporary relief granted (Lake v. Lake, 194 N. Y. 179, 184; Layton v. Layton, 19 A D 2d 726). On the other hand, the trial court will be in untrammeled position to make appropriate provision in all respects. Concur — -Breitel, J. P., Valente, McNally, Stevens and Eager, JJ.