Opinion
December 23, 1938.
Present — Lazansky, P.J., Carswell, Johnston, Adel and Close, JJ. Settle order on notice.
The action is to cancel three separation agreements made by the parties on November 5, 1926, April 5, 1928, and March 11, 1929, and for a separation. The court, by the judgment appealed from, canceled the separation agreements, granted separation and awarded plaintiff $6,000 per annum. Defendant appeals from the judgment and plaintiff appeals from so much thereof as fixes the permanent alimony at $6,000 per annum. Judgment unanimously affirmed, without costs. Finding of fact No. 42 is reversed as against the weight of the credible evidence and a new finding will be made that at the trial before Mr. Justice Walsh defendant did not state that his income was then upwards of $75,000 annually. Appeal from order denying defendant's motion for a severance and a separate trial of the first cause of action prior to the trial of the second cause of action dismissed. There is no such order in the record.