Rosenthal v. Rosenthal

44 Misc. 2d 980, 255 N.Y.S.2d 307, 1964 N.Y. Misc. LEXIS 1199

Opinion

Samuel J. Silvebman, J.

This motion to vacate an order of commitment is denied. The motion seeks substantially the same relief as was previously denied — at least informally— by Justice Amstebdam on the same facts. It is true that a strong argument can be made that under Polizotti v. Polizotti (305 N. Y. 176) the right to temporary alimony and all relief incident thereto must fall with the dismissal of the complaint on the merits. But here an adjudication of contempt was made and a fine imposed before the dismissal of the complaint, and defendant husband was permitted to purge himself of the contempt by payment of the fine in weekly installments. This right to weekly installments of the fine would seem to be a sufficiently vested right in such sense that it should survive the dismissal of the complaint. To hold otherwise would be to encourage husbands not to pay temporary alimony in the hope that everything but a probably uncollectible money judgment would be wiped out by a final judgment dismissing the complaint.