Griffin v. Griffin

219 A.D. 370, 220 N.Y.S. 39, 1927 N.Y. App. Div. LEXIS 10918

Opinion

Per Curiam.

The order sought to be resettled has already been resettled by an order of this court entered on the 24th day of December, 1926 (218 App. Div. 837), so that the motion must be treated as directed to a resettlement of the latter order. Further modification of the order is unnecessary, as no part of the amount pajd out to the plaintiff as alimony under the decree before it was modified can be recovered back (Averett v. Averett, 110 Misc. 584; affd., 191 App. Div. 948; Matthews v. Matthews, 210 id. 652), and defendant cannot have indirectly by recoupment what he could not directly obtain by restitution.

The motion should, therefore, be denied.

Present — Dowling, P. J., Finch, McAvoy, Martin and O’Malley, JJ.

Motion denied.