
    Texas F. Elgin, Plaintiff, v. Catherine Elgin, Defendant.
    Supreme Court, Special Term, Queens County,
    June 9, 1949.
    
      Allen S. Stim for defendant.
    
      Barney & McKelvey for plaintiff.
   Hill, J.

Plaintiff husband brings this action against defendant wife upon a complaint framed for a judgment of separation. The wife moves for an allowance of $150 as and for counsel fees in order to defray the expenses of her defense. It appears that the Domestic Relations Court heretofore made an order directing that the plaintiff pay his wife the sum of $35 per week.

By cross application the plaintiff husband moves for an order, modifying the order of the Domestic Relations Court to the extent of reducing the amount awarded by that court to a sum commensurate with his earnings which at the present time, he claims, are nil. He tells the court that his attorneys have been paid but a nominal amount on account of their services in the prosecution of this action.

We have here then a situation where a husband, who claims to be without funds and who says that he is about to apply for home relief, indulges in the luxury of an action for separatian. That he has been fortunate in procuring attorneys who áre willing to work for little or nothing goes without saying, but he cannot expect his wife’s attorney to do likewise. Defendant's motion for an award of counsel fees is granted. The court fiEeS the same in the amount requested) namely, $150, one half of which shall be paid within ten days after the service of a copy of the order to be entered hereon and the balance when the cause is reached for trial.

The Domestic Relations Court being expressly empowered by statute to make the award which it did) likewise has power to reduce the same upon proper showing. Said court having jurisdiction, concurrent with the Supreme Court, had both of the parties before it. Plaintiff’s cross application is accordingly denied without prejudice to his applying to the Domestic Relations Court for a reduction of support for the defendant, if so advised.

Settle order on notice.  