Lowe v. Lowe

There is an outstanding judgment of separation between these parties providing for the wife’s maintenance. Such judgment measures the husband’s obligation to the wife, and she may not receive an award for temporary alimony in this action for divorce (see Schmalholz v. Schmalholz, 111 App. Div. 543). The fact that the parties had been temporarily reconciled would not alter the case in the absence of a revocation of the separation judgment pursuant to section 1165 of the Civil Practice Act (see Schatzberg v. Schatzberg, 229 App. Div. 214, appeal dismissed 255 N. Y. 635; Beeber v. Beeber, 225 App. Div. 757).

*853The Special Term had the power, nevertheless, to award counsel fees in the divorce action (see Schmalholz v. Schmalholz, supra). We find, however, that the sum awarded was excessive and reduce it to $2,500.

The order appealed from should be modified by striking the provisions for alimony and reducing the award for counsel fees to $2,500 and, as so modified, affirmed, without costs. The balance of the appeal is dismissed. Settle order.

Dore, J. P., Cohn, Callahan, Van Voorhis and Shientag, JJ., concur.

Order unanimously modified by striking the provisions for alimony and reducing the award for counsel fees to $2,500 and, as so modified, affirmed, without costs. The balance of the appeal is dismissed. Settle order on notice.