Opinion
February 3, 1959.
Appeal from the Domestic Relations Court of the City of New York, Family Court Division, CHARLES HOROWITZ, J.
Irving I. Erdheim of counsel ( Erdheim Armstrong, attorneys), for appellant.
Jonas Ellis of counsel ( Emil K. Ellis and Maurice Shire with him on the brief; Emil K. Ellis, attorney), for respondent.
Undoubtedly the Domestic Relations Court, despite the dismissal by the Supreme Court of her separation action, had the power to grant an allowance for petitioner's support if she had established that since the separation action there had been a change of circumstances or that she was likely to become a public charge. There was no proof offered to establish that petitioner would become a public charge and the proof as to changed circumstances was clearly insufficient. However, without here considering what weight should be given thereto, the letters offered by petitioner in an attempt to establish that there had been a change of circumstances would have constituted proper evidence had that issue been properly tendered in the Domestic Relations Court.
It may also be observed that petitioner would have the right to institute a new action for separation in the Supreme Court based upon subsequent facts showing changed circumstances.
On the record in this case we think the order appealed from, which denied petitioner an allowance, was proper. Accordingly, the order should be affirmed, without costs and without prejudice to the institution of a subsequent proceeding in the Domestic Relations Court or to the commencement of a new action for separation in the Supreme Court.
BOTEIN, P.J., BREITEL, RABIN, VALENTE and BERGAN, JJ., concur.
Order unanimously affirmed, without costs, and without prejudice to the institution of a subsequent proceeding in the Domestic Relations Court or to the commencement of a new action for separation in the Supreme Court.