Smith v. Smith 50 A.D.2d 749

Judgment, Supreme Court, New York County, entered September 8, 1975, granting, inter alia, the wife’s motion to dismiss the husband’s cause of action for divorce, awarding alimony of $150 per week, counsel fees of $4,000, and directing a hearing to determine the rights of the parties to certain properties, unanimously reversed, on the law and the facts, and the matter remanded for a new trial, without costs or disbursements. The alimony awarded shall be continued as temporary alimony and the counsel fees are directed to be paid within 20 days of service of a copy of the order entered hereon with notice of entry. Appeal from an order, Supreme Court, New York County, entered September 25, 1975, denying a motion for a new trial, unanimously dismissed as academic, without costs or disbursements. Motion to delete portions of respondent’s brief unanimously denied. In this action, both husband as plaintiff and wife as defendant sought a judgment of divorce. Neither was successful. The court initially expressed an intent to grant a divorce. At certain junctures counsel for the husband sought to elicit further testimony and was told to "move on.” Had further proof been allowed, including certain expert medical testimony, the ultimate relief requested could have been granted. We have accordingly directed a new trial. Concur — Kupferman, J. P., Murphy, Lupiano, Capozzoli and Lane, JJ.