Pensley v. Pensley

Judgment, Supreme Court, New York County, entered January 30, 1976, unanimously reversed, on the facts and in the exercise of discretion, and vacated and the case remanded for a new trial, without costs and without disbursements. The findings of fact are specifically disaffirmed as against the weight of the credible evidence. The trial court’s written decision is completely barren of any explanation as to how the conflicts in the evidence, *573more particularly those between plaintiff-respondent’s own evidence given on direct and cross-examination, were resolved. The counsel fee is deemed to be excessive when the sum previously paid by plaintiff herself is taken into account, and the question of its quantum is referred for decision to the Justice who will preside at the new trial. Pending that trial and the decision to be made thereat, the provisions made as to alimony, child support, custody, and visitation shall stand. Concur—Markewich, J. P., Lupiano, Birns, Nunez and Yesawich, JJ.