¶1I concur in the result reached by the majority. The Supreme Court, New York County, obtained jurisdiction over the original separation action commenced by plaintiff in *787August, 1965, by virtue of the parties’ marriage here and plaintiff’s then residence here (former Domestic Relations Law, § 230, subd 2). Those facts would also have sufficed to confer jurisdiction on the court had plaintiff then sued for divorce (former Domestic Relations Law, § 170, subd [2]). Accordingly, in view of the circumstances disclosed in the record, as outlined in the majority memorandum, I do not believe that the court lost the jurisdiction which it had over this matrimonial controversy as a result of plaintiff’s subsequent amendment of his complaint by which he sought and obtained a divorce decree rather than a separation upon the same allegations contained in the original pleading.
¶2I would affirm the order on appeal insofar as it sets aside a prior judgment of divorce (as subsequently modified) for the carefully considered reasons given by the learned Justice below. However, I would modify said order to the extent that it denied defendant a $5,000 counsel fee; and grant the same. The history of this extensive litigation reveals that plaintiff has paid only a nominal amount for defendant’s counsel fees, primarily because defendant had previously refused to claim a sum exceeding $200,000 available to her in connection with a foreclosure action. That deposit has now been substantially reduced, if not completely exhausted, by liens filed thereagainst. The record before us discloses that defendant is now impoverished, while plaintiff has the means, and the legal obligation, to pay such amount.