Opinion
February 21, 1955.
Defendant appeals from an order granting plaintiff's motion to punish him for contempt, for failing to comply with the provisions of a judgment of divorce which directs him to pay $25 a week for plaintiff's support and maintenance. Order reversed, without costs, and matter remitted to the Special Term for a hearing in accordance with the views indicated herein. In his answering affidavit defendant claimed that he was unemployed and absolutely without means, and he demanded a hearing as to his financial inability to comply. The Special Term granted the motion, without a hearing. Special Term may decide, after a hearing, whether defendant was and is, as he contends, financially unable to comply with the judgment (Civ. Prac. Act, § 1172-a). The issue with respect thereto, presented by the conflicting affidavits herein, may be better determined after the taking of oral proof. ( Kruger v. Kruger, 279 App. Div. 808.) Nolan, P.J., MacCrate, Schmidt, Beldock and Murphy, JJ., concur.