SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
June 10, 1969
MIRIAM COHEN, RESPONDENT,
STANLEY F. COHEN, APPELLANT
Concur -- Eager, J. P., Capozzoli, McGivern, McNally and Steuer, JJ.
It appears that the trial of this annulment or separation action was scheduled for April 28, 1969 and counsel should have proceeded with such trial rather than seeking relief by appeal. "As we have stated many times before, the remedy for any seeming inequity in a direction for payment of temporary alimony based on conflicting affidavits is a speedy trial where the true facts as to the finances and standard of living of the parties can be ascertained, and plaintiff's right to alimony can be finally determined. (See Lerner v. Lerner, 22 A.D.2d 771; Gentile v. Gentile, 19 A.D.2d 825.)" (Orenstein v. Orenstein, 24 A.D.2d 753; see, also, De Gasper v. De Gasper, 31 A.D.2d 886.) Of course, any award of permanent alimony should be based upon the evidence adduced at the trial, "and not upon the amount awarded as temporary alimony, which is determined upon the moving papers (Schine v. Schine, 28 A.D.2d 976; Sklan v. Sklan, 29 A.D.2d 526; Brown v. Brown, 31 A.D.2d 516)." (De Gasper v. De Gasper, supra.)
Order, entered February 14, 1969, unanimously affirmed, without costs and disbursements.
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