Fudin v. Fudin

Plaintiff brought an action for separation, to which defendant counterclaimed for the same relief. The matter was referred to an Official Referee to hear, try and determine the issues. Plaintiff’s application for alimony pendente lite and a counsel fee was likewise referred to the trial court. After trial the complaint and the counterclaim were dismissed by a decision of the Official Referee dated June 13, 1958, on the ground that neither party proved a cause of action. The decision, nevertheless, awarded plaintiff $20 a week as alimony beginning June 15, 1958. On July 7, 1958 the Official Referee in a supplemental decision denied temporary alimony but awarded plaintiff a counsel fee of $200. A judgment dated July 7, 1958 was entered July 11, 1958 incorporating the above provisions. Defendant appeals from so much of the judgment as grants plaintiff alimony and a counsel fee. Judgment modified on the law by striking therefrom the provisions awarding alimony and a counsel fee. As so modified, judgment insofar as appealed from unanimously affirmed, without costs. The findings of fact are affirmed. In a matrimonial action where the wife’s complaint is dismissed, the court is not empowered to make an award to the wife (Civ. Prac. Act, § 1170-a) for her support. (Davis v. Davis, 75 N. Y. 221; Finlay v. Finlay, 240 N. Y. 429; Fein v. Fein, 261 N. Y. 441; Berkowicz v. Berkowicz, 1 A D 2d 1019.) Moreover, the Official Referee was without authority to amend his decision so as to correct errors in substance of either commission or omission. (Gorr v. Hoffman, 256 N. Y. 254; Decker v. Canzoneri, 256 App. Div. 68; Miltenberg & Samton v. Falkingham, 273 App. Div. 631.) The Official Referee lacked authority to award a counsel fee in a supplemental decision after the dismissal of the complaint. (Polizotti v. Polizotti, 305 N. Y. 176 and eases cited therein.) Present — Wenzel, Acting P. J., Beldock, Murphy, Ughetta and Kleinfeld, JJ.