Hammer v. Hammer

| N.Y. App. Div. | May 17, 1960

Judgment unanimously modified, on the law and in the exercise of discretion, by striking the third decretal paragraph and substituting in lieu thereof a provision that defendant pay to plaintiff for alimony and for maintenance of the two children of the parties the sum of $275 per month to begin on February 24, 1959, and, as so modified, affirmed, "with costs to plaintiff. On this record there was no warrant for disregarding the stipulation of the parties, it having been asserted on the argument and not challenged that it was within the contemplation of the parties when the $275' was stipulated for alimony that plaintiff was shortly to be appointed to the civil service position she now holds. Order of June 24, 1959 unanimously modified, on the law and in the exercise of discretion, by providing for the computation of arrears and the entry of judgment in accordance with the judgment of separation modified herewith, and, as so modified, affirmed, with costs to plaintiff. Kolmer v. Kolmer (13 Misc. 2d 313" court="N.Y. Sup. Ct." date_filed="1958-08-14" href="https://app.midpage.ai/document/kolmer-v-kolmer-6169080?utm_source=webapp" opinion_id="6169080">13 Misc 2d 313, affd. 6 A D 2d 1061) is not in point. In the instant action the defendant did not challenge the validity of the stipulation below, and, furthermore, he confirmed and ratified the stipulotion and asserted it in defense and by way of substitution of his obligation to pay a higher alimony pursuant to the terms of the order of May 13, 1957, which order, as modified by the order of December 30, 1958, was valid and subsisting until August 31, 1959, when the judgment of separation was entered herein. In addition, the order of December 30, 1958, entered as an order for judgment February 19, 1959, was never appealed from and was based on the substitution aforesaid. Settle orders. Concur — Botein, P. J., Breitel, Rabin, M. M. Frank and McNally, JJ.