Opinion
May 24, 1963
Appeal from the Erie Special Term.
Present — Williams, P.J., Bastow, Goldman, Halpern and Henry, JJ.
Order unanimously reversed, with $25 costs and disbursements and motion denied, without costs. Memorandum: The complaint should not have been dismissed because it states a prima facie case. Under its allegations the plaintiff would be entitled to give the necessary evidence to establish her cause of action. ( Coatsworth v. Lehigh Val. Ry. Co., 156 N.Y. 451, 457; 5 Carmody-Wait, New York Practice, 32, 33; Breakey v. Lake Placid Co., 271 App. Div. 586.) The separation agreement sued upon provides that the $10 weekly payments for the daughter's support are based on defendant's $60 weekly income and that "these payments are subject to future adjustment as his income may increase or decrease." The complaint alleges that defendant failed to pay an increase in the weekly payments based upon his earnings during the past six years. From this allegation and the provisions of the contract a clear inference may be drawn that defendant's income had increased and that he had failed to adjust the payments. Although the agreement is not free from ambiguity, it cannot be held as a matter of law that it is too vague or indefinite to be enforcible.