283 A.D. 713 | N.Y. App. Div. | 1954
The record does not warrant granting plaintiff any relief from the orders of the court which he has flagrantly disobeyed. The order appealed from rests upon a change in the defendant’s circumstances, rather than upon any change in the plaintiff’s circumstances. If there should be any modification of the order on account of any change in the defendant’s circumstances it should be upon notice to the Attorney-General of the State of New York and should now take the form of plaintiff making adequate payment to the State hospital. The order appealed from is reversed. Plaintiff’s motion is denied. Defendant’s cross motion for $350 counsel fee for opposing plaintiff’s motion is granted. The orders of January 12, 1951, and March 5, 1951, should be enforced without further delay or stay pending the determination of any new application that may be made by respondent. Present — Peck, P. J., Dore, Cohn, Breitel and Bastow, JJ.; Dore and Cohn, JJ., dissent in the following memorandum: We dissent and vote to modify the orders appealed from so as to require the husband to pay $50 a month but agree that any motion for a further change should be on notice to the Attorney-General and otherwise we vote to affirm. The reversal, in the terms indicated, requiring the husband forthwith to pay accumulations of about $5,000 plus $350 counsel fee in the full amount asked will not, in our opinion, benefit the wife; the net result in all likelihood will be to send the husband to jail where he can produce no income either for himself or the wife. Settle order on notice.