90 N.Y.S. 982 | N.Y. App. Div. | 1904
The appeal in this case is from an order made in the last of eleven motions, concerning alimony granted pendente Ute, which have been
It is claimed by the plaintiff that upon the dismissal of the complaint, answer and counterclaim all right to alimony, either past or future, ceased, and that, therefore, no authority existed in the court to make the order appealed from. This contention is based upon two grounds, the first of which is that the order of May 14, 1900, after providing for the payment of a specified sum, directed the remainder to be paid in monthly installments of thirty-five dollars each month, and that such period in which such payments were to be made had not expired at the time of the dismissal of the action; that by the terms of the order it was operative only during the pendency of the action, and, second, that the alimony absolutely ceased and became discharged by the dismissal. These contentions are unavailing to defeat this order. So far as past alimony is concerned, „ for which the defendant was adjudged to be liable, it was a fixed sum, due and payable at the time the first order was made which adjudged the plaintiff in contempt. The distribution of payments in stipulated monthly sums did not have the effect of discharging the defendant from the obligation to pay the whole amount of the
It should, therefore, be modified by eliminating these items from the requirement to pay, and as so modified the order should be affirmed, without costs to either party upon this appeal.
Van Brunt, P. J., Patterson, Ingraham and Laughlin, J J., concurred.
Order modified as directed in opinion, and as modified affirmed, without costs.