The alimony should be reduced from $600 to $400 a week, and counsel fee reduced from $8,000 to $4,000, the wife having paid her attorneys $5,000.
The parties entered into a separation agreement March 27, 1959, effective September 2, 1958, providing for weekly support of $175 and for a three-year period and $150 weekly for an additional period of three years ending August 26, 1964. Although there has been a change in living quarters since that time, the award is disproportionate thereto. In addition, plaintiff’s assets have increased substantially since 1960. She has assets of about $291,000 and an income of approximately $6,000 a year from securities, a good portion of which had been given- to her by defendant.
The retroactive award of alimony is improper. The application for temporary alimony was unconditionally denied on August 5, 1966. 'Counsel fee was denied at the same time, with leave, however, to renew the application therefor before the trial court. There was no appeal from the denial of temporary alimony. We have heretofore held that an award of temporary alimony should not be made subject to retroactive increase after trial. (Barnes v. Barnes, 3 A D 2d 242.) Here the order denying temporary alimony did not refer the quantum thereof to the trial court; the denial was final. In addition, the basis for the denial of temporary alimony was the plaintiff’s failure to establish the financial need therefor, and this record does not establish otherwise.
Stevens, J. P., and Capozzoli, J., concur with Tilzer, J.; McNally, J., dissents in opinion, in which Eager, J., concurs.
Judgment affirmed, without costs or disbursements to either party.