November 2, 1953.
Present — Nolan, P.J., Adel, Wenzel, MacCrate and Beldock, JJ. [ 203 Misc. 239.] [See post, p. 1046.]
In an action to recover moneys claimed to be due on a separation agreement and for other relief, the defendant counterclaimed for money allegedly advanced for the use and benefit of plaintiff. After trial, the Official Referee, to whom the action was referred to hear and determine, directed the dismissal of the complaint and the counterclaim. Plaintiff appeals from the judgment entered thereon insofar as it dismisses the complaint. Judgment, insofar as appealed from, unanimously affirmed, without costs. The agreement provided for payment to appellant of a single sum periodically for support of herself and the two children of the parties. The children were not living with appellant, or being cared for by her, in the extended period of time during which respondent made no payments to her. The court may not award her a portion of the agreed amount. That would be tantamount to making a new agreement for the parties, which the court may not do. ( Stoddard v. Stoddard, 227 N.Y. 13. )