Opinion
March 20, 1929.
Appeal from Supreme Court of Monroe County.
William J. Maloney, for the appellant.
Archibald M. Little, for the respondent.
In an action for separation this plaintiff was awarded the sum of fifteen dollars per week for the support, education and maintenance of the children of the parties to this action. Defendant paid this amount for a time, but finally defaulted. A motion was subsequently made to punish him for contempt of court. Upon such motion the court amended the original order, nunc pro tunc, by reducing the amount allowed the plaintiff, and credited on the then accrued and unpaid alimony, due under the original allowance, the overpayment, figured upon the basis of said reduction, from June 15, 1926, down to the time that the defendant stopped paying.
This credit more than wiped out the amount due under the terms of the original decree. The court, therefore, denied plaintiff's motion to punish defendant for contempt of court, upon the theory that as there was no default there could be no contempt.
The court was without power to reduce the amount of alimony awarded the plaintiff for any period prior to the date of the granting of the order, and offsetting against the amount due under the original decree the overpayments based upon said reduction. ( Barrett v. Barrett, 221 App. Div. 710.)
The order should be reversed, with ten dollars costs and disbursements, and motion remitted to the Special Term to be disposed of as the facts may warrant.
All concur. Present — SEARS, P.J., TAYLOR, EDGCOMB and CROSBY, JJ.
Order reversed, with ten dollars costs and disbursements, and motion remitted to the Special Term to be disposed of as the facts may warrant.