Bullock v. Bullock

Appellate Division of the Supreme Court of New York

Bullock v. Bullock

19 A.D.2d 584, 240 N.Y.S.2d 500, 1963 N.Y. App. Div. LEXIS 3709

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 24, 1963

StatusPublished

This text of 19 A.D.2d 584 (Bullock v. Bullock) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bullock v. Bullock, 19 A.D.2d 584, 240 N.Y.S.2d 500, 1963 N.Y. App. Div. LEXIS 3709 (N.Y. Ct. App. 1963).

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Opinion

Order unanimously reversed, with $25 costs and disbursements and motion denied, without costs. Memorandum: The complaint should not have been dismissed because it states a prima facie ease. Under its allegations the plaintiff would be entitled to give the necessary evidence to establish her cause of action. (Coatsworth v. Lehigh Val. Ry. Co., 156 N. Y. 451, 457 ; 5 Carmody-Wait, New York Practice, 32, 33; Breakey v. Lake Placid Co., 271 App. Div. 586.) The separation agreement sued upon provides that the $10 weekly payments for the daughter’s support are based on defendant’s $60 weekly income and that “these payments are subject to future adjustment as his income may increase or decrease.” The complaint alleges that defendant failed to pay an increase in the weekly payments based upon his earnings during the past six years. From this allegation and the provisions of the contract a clear inference may be drawn that defendant’s income had increased and that he had failed to adjust the payments. Although the agreement is not free from ambiguity, it cannot be held as a matter of law that it is too vague or indefinite to be enforcible. (Appeal from order of Erie Special Term granting defendant’s motion to dismiss the complaint, without prejudice to the rights of defendant to proceed upon the counterclaim in the answer.) Present — Williams, P. J., Bastow, Goldman, Halpem and Henry, JJ.

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Order unanimously reversed, with $25 costs and disbursements and motion denied, without costs. Memorandum: The complaint should not have been dismissed because it states a prima facie ease. Under its allegations the plaintiff would be entitled to give the necessary evidence to establish her cause of action. (Coatsworth v. Lehigh Val. Ry. Co., 156 N. Y. 451, 457 ; 5 Carmody-Wait, New York Practice, 32, 33; Breakey v. Lake Placid Co., 271 App. Div. 586.) The separation agreement sued upon provides that the $10 weekly payments for the daughter’s support are based on defendant’s $60 weekly income and that “these payments are subject to future adjustment as his income may increase or decrease.” The complaint alleges that defendant failed to pay an increase in the weekly payments based upon his earnings during the past six years. From this allegation and the provisions of the contract a clear inference may be drawn that defendant’s income had increased and that he had failed to adjust the payments. Although the agreement is not free from ambiguity, it cannot be held as a matter of law that it is too vague or indefinite to be enforcible. (Appeal from order of Erie Special Term granting defendant’s motion to dismiss the complaint, without prejudice to the rights of defendant to proceed upon the counterclaim in the answer.) Present — Williams, P. J., Bastow, Goldman, Halpem and Henry, JJ.

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Bluebook (online)

19 A.D.2d 584, 240 N.Y.S.2d 500, 1963 N.Y. App. Div. LEXIS 3709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bullock-v-bullock-nyappdiv-1963.

Opinion

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