
    George Rezendes, Plaintiff, v. Irene Rezendes, Defendant.
    Supreme Court, Special Term, Bronx County,
    October 20, 1961.
    
      Laivrence Buonomo for defendant. Jack M. Perlman for plaintiff.
   Edgar J. Nathan, Jr., J.

Defendant moves for a temporary injunction and for alimony and counsel fee. Plaintiff, a nonresident of this State, instituted a separation action against defendant in August, 1961. After defendant’s answer containing a counterclaim for separation was served, plaintiff commenced a divorce proceeding against defendant in the State of Rhode Island. One of the children is living with defendant, and the other child resides with plaintiff, who, it appears, had previously obtained temporary custody of both children pursuant to an order of the Probate Court of Massachusetts. Plaintiff’s attorney in opposing the motion states that his client has instructed him to discontinue the separation action since plaintiff intended to rely on the Rhode Island and Massachusetts proceedings. Unquestionably, defendant who has not appeared in the Rhode Island action would be seriously prejudiced by a discontinuance, especially where plaintiff seeks to discontinue for the purpose of defeating defendant’s right to an injunction and alimony and counsel fee. Having instituted the separation action in this court, plaintiff is subject to its jurisdiction and may not by his action in commencing a matrimonial proceeding in Rhode Island compel defendant to contest the issues in two jurisdictions.

While defendant does not divulge her weekly income, she still bears the expense of supporting one of the children. Considering this fact as well as plaintiff’s earnings and the necessity of defending the action and prosecuting the counterclaim, defendant is entitled to temporary alimony and counsel fee. Accordingly, the motion is granted. Plaintiff is enjoined from proceeding with the Rhode Island action during the pendency of this separation action. Temporary alimony is fixed at $25 weekly commencing October 16, 1961. In addition, defendant is awarded $400 counsel fees payable as follows: $200 within 20 days after service of a copy of the order to be settled herein and the balance when the case is placed on the Ready Calendar.  