222 A.D. 838 | N.Y. App. Div. | 1928
Order entered September 13, 1927, in so far as it denies defendant’s motion that judgment be docketed in her favor, reversed upon the law and the facts, with ten dollars costs and disbursements, motion to that extent granted, with ten dollars costs, and judgment for $750, the amount of alimony due under the decree, directed for defendant, with costs. The court at Special Term undertook to excuse the payment of alimony upon the ground that although, by an agreement between the parties, made in the presence of the court, the alimony should be used for the purpose of maintaining the son of the parties at a private military academy, he was taken therefrom by defendant and sent to a public school. The court had no power thus informally to construe or modify its decree, or to make its order retroactive so as to deprive defendant of the moneys due to her thereunder. Plaintiff may, however, upon the facts disclosed, apply to the court for a modification of the decree as to future payments. As plaintiff is concededly financially able to pay the alimony, that part of the order which denies sequestration is affirmed, without costs. In view of this decision, the appeal from the order denying defendant’s motion for reargument is dismissed, without costs. Young, Kapper, Hagarty, Seeger and Carswell, JJ., concur.