Wagner v. Wagner

257 A.D. 307, 13 N.Y.S.2d 113, 1939 N.Y. App. Div. LEXIS 7744

Opinion

Per Curiam.

There was sufficient proof before the Family Court to warrant a finding by it that the petitioner’s wife and her child, who are in Germany at the present time, have gone there merely for a temporary stay. In the light of this proof we feel that it was within the discretion of the court and within its power, as stated by section 92 of the Domestic Relations Court Act of the City of New York, to deny the application for suspension of the order. Section 92 defines the powers of the Family Court to include the following: “ (1) to order support of a wife or child or both, irrespective of whether either is likely to become a public charge, as justice requires having due regard to the circumstances of the respective parties.”

We reserve the question as to whether the right to continue an order such as was made here would exist where the persons benefited reside permanently without the State.

If the wife does not return within a reasonable time, the applicacation to the Family Court may be renewed upon proper proof.

The order should be affirmed.

Present — Martin, P. J., Townley, Untermyer, Cohn and Callahan, JJ.

Order unanimously affirmed.