Opinion
281 A.D. 855 119 N.Y.S.2d 496 DOROTHY REHILL, Appellant, v. LEE M. REHILL, Respondent. Supreme Court of New York, First Department. March 3, 1953
Appeal (1) from an order of the Supreme Court at Special Term, entered September 23, 1952, in New York County, which denied a motion by plaintiff for summary judgment or partial summary judgment under rules 113 and 114 of the Rules of Civil Practice, (2) from an order of said court, entered on said date, which granted a motion by defendant for an order for leave to serve an amended answer, and (3) from an order of said court, entered on said date, which granted a motion by defendant for an examination of plaintiff before trial.
Per Curiam.
Since the making of the separation agreement and the entry of the Nevada decree, concededly there have been very substantial changes in the circumstances of both the parties and the children including the emancipation of both children neither of whom for some time has lived with the mother or required support, negotiations reducing the amount to be paid, acceptance by plaintiff for a period of time of sums considerably less than those provided in the agreement, claimed accord and satisfaction and a claim for reformation based upon claimed mistake or fraud. Parties may waive their rights under a contract or under a decree whether foreign or domestic when there is no law preventing waiver. In the state of facts here disclosed, summary judgment should not be granted but all issues should await a plenary trial.
Accordingly, the orders appealed from should be affirmed, without costs, and the parties directed to proceed expeditiously to trial.
CALLAHAN and BREITEL, JJ. (dissenting).
We dissent and vote to reverse the order denying plaintiff's motion for summary judgment and to grant such motion with an assessment of damages. The agreement sued on was made a part of the Nevada decree, which directed the parties to carry it out. Accordingly, any attack on the provisions of the agreement would impair the Nevada decree. The only issue sufficiently raised by defendant appears to be as to the amount due. (See Hoyt v. Hoyt, 276 A.D. 995, affd. 301 N.Y. 589; Schacht v. Schacht, 295 N.Y. 439; Fry v. Fry, 279 A.D. 122, 304 N.Y. 889.) This may be determined upon an assessment of damages.
We dissent and vote to deny the motion to amend the answer.
We dissent and vote to deny the motion for examination before trial.
Dore, J. P., Cohn and Van Voorhis, JJ., concur in Per Curiam opinion; Callahan and Breitel, JJ., dissent, in opinion.
Orders affirmed, without costs, and the parties are directed to proceed expeditiously to trial. The date for the examination to proceed shall be fixed in the order. Settle orders on notice. [See 281 A.D. 961.]