285 A.D. 899 | N.Y. App. Div. | 1955
Defendant appeals from an order granting plaintiff’s motion to punish him for contempt, for failing to comply with the provisions of a judgment of divorce which directs him to pay $25 a week for plaintiff’s support and maintenance. Order reversed, without costs, and matter remitted to the Special Term for a hearing in accordance with the views indicated herein. In his answering affidavit defendant claimed that he was unemployed and absolutely without means, and he demanded a hearing as to his financial inability to comply. The Special Term granted the motion, without a hearing. Special Term may decide, after a hearing, whether defendant was and is, as he contends, financially unable to comply with the judgment (Civ. Prac. Act, § 1172-a). The issue with respect thereto, presented by the conflicting affidavits herein, may be better determined after the taking of oral proof. (Kruger v. Kruger, 279 App. Div. 808.) Nolan, P. J., MacCrate, Schmidt, Beldock and Murphy, JJ., concur.
