Edward B. Schmalholz, Appellant, v. Margaret Schmalholz, Respondent

Edward B. Schmalholz, Appellant, v. Margaret Schmalholz, Respondent. First Department, March 9, 1906. Divorce—temporary alimony not proper while prior award of alimony in action for separation stands — excessive counsel fees. .While á judgment for alimony obtained by a wife-in a former action brought .by, her for separation remains in force the court has no power to grant her temporary alimony as defendant in an action ftir absolute divorce. The former decree measures the husband’s obligation for support. Though the court may have power to modify such former decree,, it can only he done by application in that action. When in the action for absolute divorce the defendant wife denies the allegations and recriminates, counsel fees are proper, hut an award of $1,000 is excessive. G'ouhsel.fees re'duced to $500. Appeal by the plaintiff, Edward B. -Schmalholz, from' an order " of- the Supreme Court, made -at file New York, Special 'Term' and entered in the office of the clerk of the county of New York on the 26th day of December,. 19.05, granting the' defendant’s motion for alimony and counsel fee. Max Schleimer, for the appellant. Benno Loewy, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: ■ Prior to the commencement of this action, in an action in which thte defendant was plaintiff, a judgment of separation was obtained awarding her alimony of $120 per'month. That judgment remains un re versed and unmodified. Subsequent to the entry of that judgment this action was commenced to. obtain an absolute divorce from the defendant -upon the ground of adultery. She denied the charge and interposed a- counterclaim demanding an absolute divorce from the plaintiff, whereupon a motion was made at the Special Term asking that alimony be awarded her during the pendency of the action^and for counsel/fee to enable'her to defend this action and to prosecute her counterclaim. The court below granted alimony1 at.'the rate of $200 per month, inclusive of alimtiny awarded'in the-, separation action, and counsel fee of $1,000. T do not think the court had in this action the power to award the plaintiff alimony: By the judgment in the separation action, 'the obligation of the defendant therein for the' .support of Ins wife was fixed at the sum of $120 per month. This was the limit of the liability of the husband for the support of -his wife' while that judgment, remained in force, and the wife would have no claim upon the husband for support, except as there provided. While* it may be true that the court had power to modify that judgment, an application for that purpose must be made in the action in which it was entered.. The defendant here, having denied the allegations against her and set tip a counterclaim charging the plaintiff with adultery, and asking-a judgment of divorce, she should be awarded a reasonable sum to enable her to meet this charge.. The counsel fee awarded lief was, however, excessive. ■' > •' The order appealed from should be modified by striking out the provision as to alimony, and by reducing the counsel fee to $500, and as thus modified affirmed, without costs of this appeal. . O’Brien, P. J., McLaughlin, Clarke, and Houghton, JJ., concurred. ( Order modified as directed in opinion, and as modified affirmed, without costs. Order filed.