
    Max Herko, Respondent, v. Helen Herko, Appellant.
   In an action for separation brought by a husband in which the wife counterclaimed for an annulment or a separation, she moved to punish him for contempt and for additional counsel fees. She appeals from an order which denied her motion and also reduced the amounts of alimony and counsel fee awarded by a prior order. Order modified by striking out the third and fourth ordering paragraphs and by adding provisions that in the event of default by respondent in making payments accruing subsequent to June 25, 1952, under the order of April 3, 1952, the appellant may move before the trial court to punish respondent for contempt because of the failure to make said payments, and for such directions as to the payment of all arrears as justice shall require, having regard to the circumstances of the parties at that time; and that appellant may move for similar relief in the event respondent does not file a note of issue on or before March 15, 1953. As so modified, the order is affirmed, without costs. While the Official Referee could find that respondent was not guilty of contempt up to the date of his decision, it was an improvident exercise of discretion to reduce the amounts awarded by the order of April 3, 1952. Respondent began the action. He did not appeal from or seek by motion to modify said order. In his affidavit in opposition to the motion he asked to be permitted to make payment of the arrears in installments. Holán, P. J., Carswell, Adel, Wenzel and MacCrate, JJ., concur. [See 282 App. Div. 713.]  