Bartsch v. Seneca

Order entered September 28, 1964, herein appealed from, unanimously modified on the law to strike the provision directing payment of counsel fee for petitioner in the sum of $750, and as so modified is otherwise affirmed, without costs or disbursements to either party. In this filiation and support proceeding respondent appeared on the return day and acknowledged paternity of the infant. The question then remaining was what provision should be made for support of such infant. While the court has power, once an order of filiation is made, to allow counsel fees to the attorney for the mother, such discretionary power can only be exercised “ if she is unable to pay such counsel fees ” (Family Ct. Act, § 536; Anonymous v. Anonymous, 20 Misc 2d 753). There was no showing here that the petitioner was unable to pay a counsel fee; on the contrary the record indicates that she had already paid the sum of $2,500 to her attorney. Concur — Rabin, J. P., Stevens, Steuer and Staley, JJ.