Opinion
January 20, 1939.
Appeal from Supreme Court of New York County.
Arthur Block of counsel [ Emil N. Baar with him on the brief; Baar, Bennett Fullen, attorneys], for the appellant.
Julian A. Oshlag of counsel [ Harry Green and Julian A. Oshlag, attorneys], for the respondent.
Present — MARTIN, P.J., O'MALLEY, TOWNLEY, GLENNON and UNTERMYER, JJ.; MARTIN, P.J., and GLENNON, J., dissent and vote to affirm.
When plaintiff moved for alimony and counsel fee pendente lite, it was disclosed to the court that the children of the marriage had been entered in boarding schools. Nevertheless, the award of $150 per week was made not only for the support and maintenance of the plaintiff and the children but for their "education."
Plaintiff moved to resettle the order so as to provide that in addition to the weekly alimony award defendant should pay for the education and maintenance of the children at the respective schools. Special Term denied resettlement stating in a memorandum that the grounds alleged for the relief sought had been considered upon the disposition of the alimony motion and the signing of the order settled thereon. On the record before us the award made seems just and proper. No change in circumstances has been shown.
In his present motion to modify, defendant shows that plaintiff is not paying for the education and maintenance of the children. He, therefore, requests that the alimony be reduced to $100 and that he be permitted from the date of his application to pay for the maintenance and education of the children at the respective schools. In the circumstances he was entitled to this relief.
It follows, therefore, that the order appealed from should be reversed, without costs, and the application of defendant granted to the extent indicated.
Order reversed, without costs, and motion granted to the extent indicated in opinion. Settle order on notice.