Appellate Division of the Supreme Court of New York, Fourth DepartmentJan 15, 1970
33 A.D.2d 979 (N.Y. App. Div. 1970)

January 15, 1970

Appeal from the Oneida Special Term.

Present — Marsh, J.P., Witmer, Moule and Bastow, JJ.

Order dated August 3, 1968 unanimously modified by striking therefrom the second and third ordering paragraphs in accordance with the following memorandum, and as so modified affirmed, without costs. Memorandum: By order of June 22, 1967 defendant was required to make certain weekly alimony and support payments. For failure to make $2,224 of such payments he was adjudged in contempt of court by order of November 16, 1967, affirmed 30 A.D.2d 644. We find insufficient evidence to justify purging the defendant of such contempt, and the order of August 3, 1968 should be modified by striking therefrom the paragraph vacating the prior order adjudging him in contempt. At the hearing directed in companion appeal No. 715 [ 33 A.D.2d 980], evidence should be also taken to determine the manner in which defendant shall pay said $2,224 of alimony and support arrearage. The order of August 3, 1968 should be further modified by striking therefrom the paragraph allowing the defendant to resume living at home. Such provision is inconsistent with the judgment of January 5, 1967, affirmed by this court in 30 A.D.2d 642, and insufficient showing has been made to warrant the change.