
    Mary Ribaudo, Respondent, v. Lawrence Schwartzer, Appellant.
   Appeal from order entered on January 24, 1961 unanimously dismissed, without costs, with leave to the appellant to move for a vacatur of the order and with leave to the respondent by motion or cross motion, addressed to the discretion of the court, to seek reopening of the paternity proceeding for a nunc pro tunc application for counsel fees. The order appealed from, not being a final one within the contemplation of section 76 of the New York City Criminal Courts Act, is not appealable and the appeal must be dismissed. However, it was beyond the jurisdiction of the court to make such order. The counsel fees provided for in subdivision 4 of section 69 of the New York City Criminal Courts Act must be sought at the time the filiation order is made and before that proceeding is closed. The instant order granting counsel fees on an application made subsequent to, and essentially independent of the paternity proceeding, should not have been entertained and upon proper application should be vacated. If application for such vacatur be made the respondent may, if so advised, seek a reopening of the paternity proceeding for the purpose of seeking counsel fees. The grant or denial of such relief will lie in the discretion of the trial court. Concur — Botein, P. J., Breitel, Rabin, Valente and Steuer, JJ.  