Evans v. Evans

In an action for separation and for other relief in which there is a counterclaim for annulment, the appeal is from an order dated December 19, 1955, granting respondent’s motion for temporary alimony and a counsel fee, and from an order dated February 20, 1956, granting reargument and adhering to the original determination. Order dated February 20, 1956, modified by strildng from the first ordering paragraph everything following the word “ reargument ” and by providing in lieu thereof that the motion for alimony and a counsel fee be referred to the trial court; by striking from said order the second *1030ordering paragraph, and by adding a further provision to the effect that the determination is without prejudice to any motion which respondent may be advised to make for a counsel fee for her defense against the counterclaim. As so modified, order affirmed, without costs. Appeal from order dated December 19, 1955, dismissed, without costs. The state of the papers submitted is such that the motion ought to be determined by the trial court. The motion was made before the answer containing the counterclaim was served; the counterclaim is not included in the papers on appeal, and the papers do not indicate what the facts concerning the counterclaim are. Nolan, P. J., Wenzel, Beldock, Murphy and Kleinfeld, JJ., concur.