Hannah Zahler v. David S. Zahler

Judgment of the Supreme Court, Queens County, dated July 14, 1966 which, inter alia, dismissed plaintiff's causes of action for a separation, modified on the law and the facts and in the exercise of discretion by striking out all the decretal paragraphs except the first, fifth, sixth, seventh, eighth and tenth decretal paragraphs and by substituting therefor provisions: (a) granting plaintiff's motion for support and maintenance and directing that defendant pay plaintiff the sum of $20 a week for her support and maintenance and by incorporating that provision into and in conformity with the direction for the payments made for the support and maintenance of the children (see sentence 5 in Domestic Relations Law § 236 and the Practice Commentary which follows Domestic Relations Law § 234, McKinney's Cons. Laws of N. Y., Book 14, p. 140); (b) directing that plaintiff is granted exclusive possession of the apartment, their marital domicile, in the two-family house at 73-58 199th Street, Flushing, Queens, New York, owned by the parties as tenants by the entirety; and (c) granting plaintiff's motion for an additional counsel fee of $250. The sixth decretal paragraph will be combined with the new decretal provision for the support and maintenance of the wife. As so modified, judgment affirmed, with costs to appellant. Inconsistent findings of fact are reversed and new findings are made as indicated. It was not error to dismiss plaintiff's causes of action for a separation (Schapiro v. Schapiro, 27 A.D.2d 667; Sacks v. Sacks, 26 A.D.2d 575), but, in our opinion, it was an improvident exercise of discretion to deny plaintiff's motion for support and maintenance for herself and for an additional counsel fee of $250 (Brownstein v. Brownstein, 25 A.D.2d 205; Sacks v. Sacks, supra; Practice Commentary which follows Domestic Relations Law, § 234, McKinney's Cons.