Opinion
September 22, 1961
Appeal from the Erie Special Term.
Present — Williams, P.J., Goldman, McClusky and Henry, JJ.
Order unanimously reversed, without costs of this appeal to either party, and matter remitted to Special Term for further proceedings in accordance with the memorandum. Memorandum: In the course of a hearing of issues of fact raised on plaintiff's motion to modify a divorce decree, plaintiff's attorney made an offer of proof as to her physical ability to work. The court reserved decision on such offer. The court thereafter, in considering defendant's motion to dismiss the proceeding, upon which it also reserved decision, stated that, if it decided favorably to plaintiff on other issues, the court would insist that the offered proof be presented by plaintiff and that defendant could offer defense, if necessary, at that time. The court rendered its decision and granted the order appealed from without hearing the offered proof and without affording defendant an opportunity to present evidence. Under the circumstances, the order should not have been granted until an opportunity for a further hearing had been given. Accordingly, the matter is remitted to Special Term for further proceedings in the course of which an opportunity for a further hearing should be provided.