
    Therese Pearson, Plaintiff, v. Herbert Pearson, Defendant.
    Supreme Court, Special Term, Kings County,
    May 27, 1959.
    
      
      Lester IAchter for defendant.
    
      August Zolotorofe for plaintiff.
   Benjamin Brenner, J.

Defendant moves to stay execution by the plaintiff on both a judgment and an order which provide for the payment of counsel fees and costs.

Plaintiff was awarded $1,000 counsel fees as part of a judgment of separation granted to her after a lengthy trial. The order directed payment of additional counsel fees of $1,000 and printing costs to the plaintiff for an appeal from that part of said judgment which awards visitation rights and for inadequacy of the first counsel fee.

Under section 584 of the Civil Practice Act the Appellate Division could conceivably reduce, instead of increase, the award of counsel fee in the judgment of separation, as sought by plaintiff, even though no cross appeal by the defendant has been taken. Thus, there would seem to be no limitation of the power of the Appellate Division to stay execution at the instance of either party. On the other hand, the power of this court seems limited by section 615 of the Civil Practice Act, which permits it to stay execution upon appeal under certain conditions only on behalf of the appellant. The application to stay execution of the judgment should therefore be made to the Appellate Division.

As to the application for a stay, addressed to the order awarding a counsel fee, this court has the discretionary power under section 615 of the Civil Practice Act to stay execution of such order pending the appeal since in that appeal he is the appellant. Such discretion will, however, not be exercised in view of the disposition above. It should be noted that under section 615 the defendant may have a stay of execution of the order without more by giving the appropriate undertaking.

Motion denied without prejudice to a renewal before the Appellate Division.

Settle order on notice.  