CHARLES O. NEAL,

Plaintiff,

-vs- Index #H10533

RUTH A. NEAL,

Defendant.

SIEGEL, KELLEHER &

KAHN (Ross R. Runfola,

Esq. of Counsel) for

Plaintiff

BRANDT, LAUGHLIN, SCHAACK,

WHIPPLE AND CLARK, P.C.

(Richard F. Whipple, Jr.,

Esq. of Counsel) for

Defendant

DECISION AND ORDER

GERACE, J.

Defendant moved to dismiss and seeks costs, sanctions and attorney fees. Plaintiff is willing to discontinue his action but, protests against an award of costs, attorney fees or sanctions because the ill advised action was commenced by plaintiff's previous attorney.

This Court rejects plaintiff's contention that this is a contract action which would make it inappropriate to assess a fee. This is an action on maintenance in a matrimonial action.

The action is dismissed, with $100.00 costs and $412.50 counsel fees awarded to defendant. Plaintiff will have to look to his earlier counsel for reimbursement.

This is the Decision and Order of this Court. No further order shall be necessary.

Dated: March 10, 1995

Mayville, New York

JOSEPH GERACE

Justice of Supreme Court