Pountney v. Pountney — 32 N.Y. St. Rep. 335

Majority

p. 335

Mary A. Pountney, Resp’t, v. William Pountney, App’lt.

(Supreme Court, General Term, Second Department

Filed May 12, 1890.)

Headnote

Divorce — Alimony—Witness ebbs.

In an action for divorce, the court granted an allowance to plaintiff of “ $100 for counsel fees pending the litigation.” Held, that defendant had no right to ask plaintiff’s attorney to apply any portion thereof to the payment of witness’ fees, and that the form of the check by which it was paid, stating that fifty dollars was for witnesses, did not change the order.

Appeal from order denying motion for retaxation of costs.

Action for limited divorce. On motion, alimony was allowed and $100 for counsel fees pending the litigation. The latter •amount was paid by check, which, it was claimed, stated that fifty dollars was for counsel fees and fifty dollars for witnesses. After recovery of judgment plaintiff taxed her costs, including $110.64 ior witness’ fees.

JohnW. Lyon, for app’lt; O. M Cuddeback, for resp’t

This action was for a divorce. A motion was made by the plaintiff for alimony and expenses before trial. The affidavit of the plaintiff states that fifty dollars was granted for counsel fees and fifty dollars for witness fees. The order was not so entered, ■ but alimony was allowed and “ $100 for counsel fees pending the litigation.” With this order standing there is no basis for a retaxation of costs. The order allows nothing for witness fees or expenses, and the defendant has no right to ask the plaintiff’s attorney to apply any portion of the $100 to the payment of witness fees. The form of the check by which the $100 was paid, stating that fifty dollars was for counsel fees and fifty dollars for witnesses, did not change the order. The plaintiff’s attorney could receive the $100 as his right under the order.

Order affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.