
    Vincent Esposito, Respondent, v Anna Esposito, Appellant.
   — In an action for divorce, the defendant wife appeals from an order of the Supreme Court, Kings County, entered February 19, 1974, which (1) denied her motion for an injunction restraining plaintiff from instituting a matrimonial action without the State of New York, (2) denied her motion for a counsel fee and (3) granted plaintiff’s cross motion for a discontinuance of the action. Order modified, in the interest of justice and in the exercise of discretion, by (1) deleting from the first decretal paragraph thereof the provision denying defendant’s application for a counsel fee and substituting therefor a provision awarding her a counsel fee in the sum of $500 and (2) adding to the second decretal paragraph thereof the following: "on condition that plaintiff serve a stipulation in which he agrees not to commence an action for divorce without the State of New York at least until after June 12, 1975.” As so modified, order affirmed, without costs. The said stipulation is to be served upon the attorney for defendant within 10 days of service upon the attorney for plaintiff of a copy of the order to be made hereon, together with notice of entry thereof. Considering the relative circumstances of the parties, and the fact that this litigation was commenced by plaintiff, defendant is entitled to the counsel fee awarded herein (Domestic Relations Law, § 237). In addition, having due consideration for the parties and the peculiar facts of this case, we think that in exercising its discretion in granting plaintiff’s cross motion to discontinue this action, Special Term should have conditioned such relief upon his agreement to forbear from commencing another divorce action in another forum at least until after June 12, 1975, the date upon which certain valuable rights will vest in defendant. Gulotta, P. J., Martuscello, Latham, Cohalan and Shapiro, JJ., concur.  