Cantor v. Cantor 18 A.D.2d 808

In an action by a wife for a separation, in which the defendant husband interposed counterclaims for the same and other relief, he appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County, dated October 2, 1962, as granted the wife’s motion: for temporary alimony and counsel fee to the extent of directing the husband to pay alimony of $225 per week and a counsel fee in the amount of $2,500. Order modified by amending its second decretal paragraph so as to provide for the payment of alimony to the plaintiff at the rate of $125 a week so long as she shall be permitted, pendente lite, to remain in possession of the marital home and so long as defendant shall defray the carrying charges thereon. As so modified, the order, insofar as appealed from, is affirmed, without ¡costs. In our opinion, so long as plaintiff is permitted to occupy the marital home, with defendant paying the carrying charges thereon, an award of temporary alimony at the rate of $225 a week is excessive. It is also our opinion that all the issues in the action should be determined after a trial and that the ¡trial should be had promptly. Our present decision is not intended to govern! or to influence the Trial Justice in the exercise of his discretion in fixing the amount of permanent alimony, if any, or in awarding an additional counsel fee, if any. Such a determination must necessarily be based upon all the proof adduced at the trial. Beldoek, P. J., Kleinfeld, Christ, Rabin and Hopkins, JJ., concur.