Opinion
July 10, 1967
Defendant appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Suffolk County, dated September 27, 1966, as is in favor of plaintiff Mary B. Horne against him in the sum of $5,777.41, with interest. Judgment modified, on the law and facts, by striking from the third ordering paragraph the words and figures "Five Thousand Seven Hundred Seventy-seven and 41/100 ($5,777.41) Dollars" and by substituting therefor "Forty-seven and 41/100 ($47.41) Dollars". As so modified, judgment affirmed insofar as appealed from, with costs to appellant. Findings inconsistent herewith are reversed and new findings are made as indicated herein. Defendant and plaintiff Mary B. Horne were formerly husband and wife. This appeal involves her claim for expenditures allegedly made by her on behalf of the two infant children of the parties. In this action she sought recovery therefor both under the terms of a separation agreement, which was incorporated in a Mexican decree of divorce obtained by her, and on the theory that the expenditures were for necessaries. The judgment awarded her $5,777.41 for such payments; and included in that sum was $5,730 allegedly paid for "household expenses". In our opinion, defendant was not liable for any of the items included in "household expenses", under the provisions of the separation agreement setting forth his obligations with respect to the support of the children. Under such circumstances, the award for "household expenses" may not be sustained, since the agreement, incorporated in the Mexican decree, was the measure of defendant's responsibility for past expenditures made by plaintiff, even for necessaries ( Crane v. Crane, 199 Misc. 980, affd. 281 App. Div. 671, mot. for 1v. to app. den. 305 N.Y. 929; cf. Langerman v. Langerman, 303 N.Y. 465; Porges v. Louis-Dreyfus, 280 App. Div. 277, 285-286). Ughetta, Acting P.J., Brennan and Hopkins, JJ., concur; Nolan, J. concurs in the modification of the judgment, but votes to grant a new trial of the issues involving plaintiff's claim for reimbursement for expenditures made on behalf of the children and to sever those issues for that purpose. The trial court did not decide whether or not the separation agreement, incorporated in the divorce decree, required the defendant to pay for the living expenses of his children. If it did, the amounts expended by plaintiff for that purpose are recoverable under the agreement. If it did not, recovery should not be barred by an agreement, or a judicial decree, which makes no provision for such living expenses. However, the evidence adduced on the trial was insufficient to establish the amounts paid for that purpose by the plaintiff. Christ, J., dissents and votes to affirm the judgment.