Opinion
May, 1897.
Louis Wertheimer and Wertheimer Duffy, for appellant.
Abraham Nelson, for respondent.
The facts appearing upon the second trial of this action differ from those before the court on the former appeal. Bittiner v. Goldman, 19 Misc. 146; 43 N.Y.S. 387. Our decision was then based upon the apparent fact that after the stipulation for the payment of plaintiff's compensation out of the alimony and counsel fee to be collected under the order of October 14, 1895, this defendant procured a modification of such order, or a substituted order, by which the alimony was reduced.
It appeared on the second trial that such reduction was made, not by the procurement of this defendant, but on the motion of his adversary in the divorce suit who was thereupon relieved from paying the alimony formerly allowed. This defendant, therefore, is not barred from claiming that such reduction affects the right of the plaintiff to enforce the stipulation upon which he relies.
The stipulation provided that, in the event of the alimony and counsel fee being collected, the plaintiff was to have the counsel fee of $25 and the further sum of $25, to be deducted from the alimony. The payment of this latter sum was clearly contingent upon the collection of the alimony, and as such collection was made impossible, not by the act of the defendant, but by the act of the court in modifying the original order, the right to the payment of that sum ceased with the fund out of which it was payable. The payment of the $25 counsel fee was, however, a separate matter and was dependent only upon the collection of the counsel fee mentioned in the order. As the defendant got it, he should pay it over for the reason given in the former appeal.
Judgment modified by deducting $25 and affirmed for the residue. No costs on this appeal.
McADAM and BISCHOFF, JJ., concur.
Judgment reduced by deducting $25 and affirmed for residue, without costs of appeal.