SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
May 28, 1969
MAY M. PETERS, RESPONDENT,
RUSSEL PETERS, APPELLANT
Gibson, P. J. Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Greenblott, JJ., concur in memorandum by Gibson, P. J.
Appeal, by permission, from an order of the Family Court of Sullivan County which, in a proceeding commenced by petitioner-respondent wife under article 4 of the Family Court Act, directed appellant husband to pay $30 weekly for the support of petitioner "pending a final determination and until the entry of a final order herein". The record before us provides no basis for disturbing the Family Court's action in granting the preliminary and interim relief of which appellant complains. This proceeding was commenced during the pendency of a divorce action between the parties. Appellant questions the identity of respondent as the woman whom he married in 1934 and from whom he has been separated since 1935; questions, also, the finding of the Family Court, upon which its jurisdiction to act during the pendency of the divorce action depends, that petitioner is "likely to become in need of public assistance or care" (Family Ct. Act, § 464, subd. [b]); and urges that petitioner's inaction for 34 years should "bar" relief in the Family Court until after trial in Supreme Court of the divorce action. The Family Court made it abundantly clear that the order appealed from is temporary and that final determination of the proceeding will be deferred until such time as the issues in the Supreme Court action shall be adjudicated; and urged counsel to proceed promptly in that action and to request a trial preference pursuant to the agreement of the attorneys for the defendant husband to join in an application therefor. We, too, consider that counsel should apply without further delay for a prompt disposition of the matrimonial action. In the event of petitioner's failure to make such an application promptly, the Family Court would be warranted in entertaining an application to modify or stay the order appealed from.
Order affirmed, with costs, and stay vacated.
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