SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 3, 1968
CAROLYN BRAININ, RESPONDENT,
ROBERT BRAININ, APPELLANT
In an action for separation, the defendant husband appeals from an order of the Supreme Court, Kings County, entered November 21, 1967, which (1) directed him to pay $75 per week for the support of plaintiff and the infant child of the parties and $500 counsel fees and (2) granted plaintiff leave to apply to the trial court for additional counsel fees. Order modified, on the law and the facts and in the exercise of discretion, by (1) reducing the amount directed to be paid for support to $50 per week, (2) striking out the decretal provisions as to counsel fees and (3) substituting therefor a provision that the application as to counsel fees is refered to the trial court.
Beldock, P. J., Christ, Rabin, Benjamin and Martuscello, JJ., concur.
In view of the take-home pay of defendant and the fact that plaintiff continues to live in a house the expenses for which are paid by defendant's parents, the award of alimony was excessive. Plaintiff's attorney has received $400 for services rendered in connection with the conduct of the parties. For that reason and since there is no proof before the court as to the merits of the action, we deem it advisable to refer the matter of counsel fees to the trial court.
As so modified, order affirmed, without costs.
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