Opinion
February 2, 1959
Appeal (1) from an order entered April 1, 1958 granting a motion to punish appellant for contempt for failure to pay temporary alimony and a counsel fee, as directed by an order entered December 19, 1957, and (2) from an order entered October 16, 1958 denying appellant's motion to be relieved of the order adjudging him in contempt and to modify the order entered December 19, 1957 by reducing the amounts directed to be paid thereby. Orders entered April 1, 1958 and October 16, 1958 reversed, without costs, and matters remitted to the Special Term for a hearing in accordance with the views indicated herein. No hearing has been held as to appellant's financial circumstances or as to his ability to comply with the order awarding temporary alimony and a counsel fee, despite his request for such a hearing. The Special Term may decide, after a hearing, whether appellant was and is, as he contends, financially unable to comply with the order of December 19, 1957 and whether the amounts allowed therein should be reduced (Civ. Prac. Act, § 1172-a). The facts with respect thereto may be better determined after the taking of oral proof than on conflicting affidavits. ( Larotondo v. Larotondo, 285 App. Div. 899.) Nolan, P.J., Wenzel, Beldock, Murphy and Ughetta, JJ., concur.