Baxter v. Baxter

256 A.D. 892, 9 N.Y.S.2d 44, 1939 N.Y. App. Div. LEXIS 9262

Opinion

Order reversed on the law and facts, without costs of this appeal to either party, and defendant’s application for a reduction in alimony granted in the amount of fifty dollars per month, without costs. New findings of fact made. Memorandum: Upon the uncontroverted facts, and taking into consideration the needs of the plaintiff, defendant was entitled to a reduction in the amount of alimony allowed to the plaintiff under the final decree of divorce. It was, therefore, error for the court to deny his application and to dismiss his petition. Whether the court would grant the defendant leave to make application for a reduction of alimony, he having remarried in violation of its decree, was discretionary. (Livingston v. Livingston, 173 N. Y. 377.) Under the circumstances, we find no abuse of discretion in that regard. All concur. (The order confirms a report of a referee adjudging defendant to be in contempt of court for failure to pay alimony, and denying defendant’s application for a reduction of alimony.) Present — Sears, P. J., Crosby, Cunningham, Taylor and Dowling, JJ.