
    Anastasia Carbulon [now Anastasia Patrikaris], Appellant, v. John R. Carbulon, Respondent.
    Third Department,
    November 10, 1943.
    
      
      Levi R. Chase, attorney for appellant.
    ' Abraham J. Ealprin, attorney (Sidney R. Rossiter of counsel), for respondent.
   Bliss, J.

Authority for the entry of judgment for unpaid temporary alimony and counsel fees is found in section 1171-b of the Civil Practice Act. Where the" husband, in an action for * * * separation, * * * makes default in paying any sum of money as required by the * * * order directing the payment thereof, the court may make an order directing the entry of judgment for the amount of such arrears, together with ten dollars costs and disbursements.” Here we have a husband, sued for a separation, who for almost six years completely ignored the order of the Supreme Court that he support his wife while she was compelled to support herself at labor far below her former style of living. Nor does his claim, of alleged fraud in connection with the marriage add to his stature. The plaintiff was entitled to be supported by him at least until she remarried and this record shows no good reason why such support should not have been provided. The defendant should not new be allowed to profit by his complete disregard of the orders of the court. As to the counsel fee, it is quite apparent that the plaintiff has been put to much unjustified expense and trouble and she should be permitted to collect the amount allowed. Plaintiff’s right to counsel fees and alimony during the pendency of the action is in no way dependent upon her finally obtaining a judgment in her favor. All she had to show in the first instance was probable success upon the trial and we must assume that this she did, for no appeal was taken from the order allowing the same. It is true that by subsequently remarrying she has made it impossible for her to he successful in her action. But this does not alter the fact that she was entitled to her support up to that time and that the defendant was in contempt for failure to obey the order of the court.

The application of the plaintiff to enter money judgment was timely. It was made before the action was dismissed and it is this application which is now before us.

The order of the Special Term should be modified so as to grant plaintiff’s motion for a money judgment for the arrears of alimony to the date of her remarriage, and the counsel fee, with ten dollars costs, and as so modified affirmed, with twenty-five dollars costs and disbursements to the plaintiff-appellant against the defendant. The judgment appealed from should be affirmed, without costs.

All concur.

Order of the Special Term modified so as to grant plaintiff’s motion for a money judgment for the arrears of alimony to the date of her remarriage, and the counsel fee, with ten dollars costs, and as so modified affirmed, with twenty-five dollars costs and disbursements to the plaintiff-appellant against the defendant.

Judgment appealed from affirmed, without costs.  