Kane v. Kane

Appellate Division of the Supreme Court of New York

Kane v. Kane

10 A.D.2d 888, 201 N.Y.S.2d 127, 1960 N.Y. App. Div. LEXIS 10403

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

DecidedApril 27, 1960

StatusPublished

This text of 10 A.D.2d 888 (Kane v. Kane) 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

Kane v. Kane, 10 A.D.2d 888, 201 N.Y.S.2d 127, 1960 N.Y. App. Div. LEXIS 10403 (N.Y. Ct. App. 1960).

Pincite

Opinion

In an action for a separation, the wife appeals from so much of a judgment of the Supreme Court, Kings Ctiunty, made December 3, 1959, after trial, granting her a separation, as adjudged in its second decretal paragraph that she “ is not entitled to alimony because of her earnings ” and gave her permission to apply for a modification in the event of any subsequent change in her health or in her circumstances. Judgment, insofar as appealed from, modified on the law and the facts, with costs to the appellant, by striking therefrom the second decretal paragraph and by substituting therefor a provision awarding to the wife alimony of $25 a week, commencing as of December 10, 1959, and directing the husband to pay such alimony. The seventh finding of fact is reversed, and a new finding is made as follows: “ Seventh. That on the basis of the respective earnings of the parties, the plaintiff wife is entitled to alimony of $25 a week, commencing as of December 10, 1959.” From the undisputed evidence as to the amounts of the wife’s earnings and her necessary expenditures, it appears that her salary is at the rate of $65 a week before deductions, and that her expenditures are about $48 per week. The evidence would also justify a finding that the husband’s earnings are about $110 a week. Although a wife’s earnings are to be considered (Phillips v. Phillips, 1 A D 2d 393, affd. 2 N Y 2d 742; Sacknoff v. Sacknof, 6 A D 2d 879), disallowance of alimony altogether, on the stated figures, cannot be justified. In our opinion, under all the circumstances, an award of $25 a week for alimony would be fair. Since all the material evidence is now contained in the record, the judgment is amended accordingly pursuant to section 584 of the Civil Practice Act, without remission to the Special Term. Beldock, Acting P. J., Ughetta, Christ, Pette and Brennan, JJ., concur.

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In an action for a separation, the wife appeals from so much of a judgment of the Supreme Court, Kings Ctiunty, made December 3, 1959, after trial, granting her a separation, as adjudged in its second decretal paragraph that she “ is not entitled to alimony because of her earnings ” and gave her permission to apply for a modification in the event of any subsequent change in her health or in her circumstances. Judgment, insofar as appealed from, modified on the law and the facts, with costs to the appellant, by striking therefrom the second decretal paragraph and by substituting therefor a provision awarding to the wife alimony of $25 a week, commencing as of December 10, 1959, and directing the husband to pay such alimony. The seventh finding of fact is reversed, and a new finding is made as follows: “ Seventh. That on the basis of the respective earnings of the parties, the plaintiff wife is entitled to alimony of $25 a week, commencing as of December 10, 1959.” From the undisputed evidence as to the amounts of the wife’s earnings and her necessary expenditures, it appears that her salary is at the rate of $65 a week before deductions, and that her expenditures are about $48 per week. The evidence would also justify a finding that the husband’s earnings are about $110 a week. Although a wife’s earnings are to be considered (Phillips v. Phillips, 1 A D 2d 393, affd. 2 N Y 2d 742; Sacknoff v. Sacknof, 6 A D 2d 879), disallowance of alimony altogether, on the stated figures, cannot be justified. In our opinion, under all the circumstances, an award of $25 a week for alimony would be fair. Since all the material evidence is now contained in the record, the judgment is amended accordingly pursuant to section 584 of the Civil Practice Act, without remission to the Special Term. Beldock, Acting P. J., Ughetta, Christ, Pette and Brennan, JJ., concur.

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Bluebook (online)

10 A.D.2d 888, 201 N.Y.S.2d 127, 1960 N.Y. App. Div. LEXIS 10403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kane-v-kane-nyappdiv-1960.