Betty L. Dunlap, Respondent, v. Charles Dunlap, Appellant

Betty L. Dunlap, Respondent, v. Charles Dunlap, Appellant. Appeal No. 3. [MAJORITY] Order unanimously modified in accordance with the Memorandum herein, and as so modified affirmed, with costs to respondent. Memorandum : Defendant appeals from an order of Monroe Special Term which directed him to pay counsel fees to plaintiff’s attorney and to give security for costs. The order for payment of counsel fees to plaintiff’s attorney was properly made (Zerille v. Zerille, 46 Misc 2d 806), but the order should be modified by deleting therefrom the provisions requiring defendant to give security for costs. In our opinion the provisions of CPLR 8501 requiring nonresident plaintiffs to give such security do not apply to a nonresident defendant who has interposed a counterclaim. (Turmelle v. Jefferson, 166 Misc. 70.) The order should be modified by deleting the first, third, and fourth ordering paragraphs thereof. (Appeal from order of Monroe Special Term, directing payment of counsel fees pendente lite and giving of security and granting stay, in divorce action.) Present — Goldman, P. J., Marsh, Witmer, Moule and Henry, JJ.