6 A.D.2d 789 | N.Y. App. Div. | 1958
— The order at Special Term denying the plaintiff’s motion to punish the defendant for contempt is reversed on the law, on the facts, and in the exercise of discretion, and the motion to punish for contempt is granted, with costs, with leave, however, to the defendant, after payment of all arrears, to make application to modify the judgment to condition the payments required to be made by him thereunder upon the right of visitation. If the defendant promptly moves to modify as hereinabove permitted, such application shall be consolidated with the plaintiff’s motion to modify the judgment and a joint hearing on both applications shall be held. The fixation of counsel fees, if any, is reserved for Special Term pursuant to section 1172-d of the Civil Practice Act when the applications for modification of the judgment are considered. The order dated February 4, 1958, which denied the plaintiff’s application to modify the judgment of separation by striking the provision for visitation by the defendant therefrom is modified on the law, the facts, and in the exercise of discretion, to provide for a hearing thereon, without costs. Settle orders. Concur — Breitel, J. P., Frank, Valente, Stevens and Bergan, JJ.