
    Clarence J. Fennessey, Respondent, v. Marie M. Fennessey, Appellant.
    Third Department,
    May 13, 1931.
    
      Henry J. Crawford, for the appellant.
    
      Frank E. Holahan, for the respondent.
   Per Curiam.

A jury has found in favor of the defendant on the issue of adultery. The court, upon her counterclaim for a separation, decided in her favor, and awarded the custody of the child and $100 a week permanent alimony. At a later hearing, evidence was taken and an order modifying the judgment granted. Upon this hearing, defendant was not permitted to call several witnesses present in the court. The character of the defendant and her fitness to have the custody of the child were at issue. It was stated by her counsel, and it seems that these witnesses could have given material and necessary evidence. Upon a new hearing the court can, in determining the amount of permanent alimony to be paid from the date of the original final judgment, take into consideration defendant’s expenses in connection with the litigation which followed the final judgment.

The order modifying the judgment of separation should be reversed on the law and facts, with costs and disbursements to defendant, appellant. The order denying additional counsel fees should be affirmed, without costs.

All concur.

Order modifying judgment of separation reversed on the law and the facts, with costs to the defendant, appellant. Order denying additional counsel fees affirmed, without costs.  