Opinion
November 14, 1951.
The parties to this action are husband and wife. At a Special Term of the Supreme Court in Broome County held on July 11, 1947, a judgment of separation was granted in favor of the wife. Prior to the entry of the judgment the parties and their attorneys entered into a stipulation by the terms of which the defendant agreed to pay to plaintiff the sum of $125 counsel fees and $20 per week alimony. The stipulation also provided that plaintiff should retain certain property. Pursuant to the terms of that stipulation the judgment directed defendant to pay to plaintiff the sum of $20 per week alimony for the support and maintenance of his wife. Apparently defendant complied with the provisions of that judgment. By an order to show cause dated May 21, 1951, and returnable at a Special Term of the Supreme Court to be held in the City of Binghamton on June 1, 1951, defendant applied to reduce the amount of the alimony to be paid to the plaintiff because of the fact that he was in ill health. No cross motion was made by plaintiff for any relief nor did plaintiff attempt to contradict defendant's assertions as to his illness. The only proof submitted by plaintiff in opposition to the motion referred to matters which all occurred prior to the granting of the judgment of separation. The Special Term denied defendant's application for reduction of alimony. The court not only denied that application but on its own motion it modified the judgment of separation nunc pro tunc as of July 11, 1947, by changing the provision which directed the defendant to pay plaintiff the sum of $20 per week and directed that the defendant pay plaintiff alimony at the rate of $30 per week retroactively to the 14th day of June, 1947. The court directed a judgment in favor of plaintiff in the sum of $6,330, plus the sum of $500 for counsel fees, making a total of $6,830 and then credited him with the sum of $4,180 which defendant had paid to the plaintiff under the judgment of separation, leaving a balance of $2,650 for which a money judgment was awarded the plaintiff against the defendant and a judgment to that effect was entered. Defendant has appealed to this court from the order and judgment so entered. In the absence of a cross motion by plaintiff, the court had no authority to modify the judgment of separation and no authority to direct the entry of a money judgment against defendant. Order and judgment appealed from reversed, on the law and facts, without costs, and the judgment entered against defendant is vacated. The question as to whether or not defendant is entitled to a modification of the judgment regarding the provision for alimony is remitted to the Special Term for consideration and determination. Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ., concur.