Opinion
March, 1932.
Present — Sears, P.J., Taylor, Edgcomb, Thompson and Crosby, JJ.
Order affirmed, with ten dollars costs and disbursements. Per Curiam. Plaintiff applied in March, 1931, for a reduction of the allowance for maintenance of his child. His application was denied in an order dated March 31, 1931, and he did not appeal from that order. In and by the order now on appeal plaintiff has since been adjudicated in contempt of court for non-payment of maintenance money and punishment has been imposed. In this proceeding plaintiff made a counter-motion on affidavits dated in December, 1931, and upon the same grounds which were the basis of the motion in March, 1931, for either a reduction of the award for maintenance or for an award of the custody of his child to himself — and this counter-motion was denied. We find no circumstances presented by the record before us to warrant us in interfering with the order appealed from while plaintiff stands unpurged of his contempt. ( Brinkley v. Brinkley, 47 N.Y. 40; Brice v. Brice, 225 App. Div. 453.) If another application be made later under other circumstances for a reduction, the court will not be influenced to deny the application by any agreement made between the parties with reference to alimony or maintenance allowance before the judgment of divorce was entered upon defendant's default and with her apparent consent. All concur.