Opinion
January 14, 1947.
Appeal from an order denying plaintiff's motion for an order directing the entry of judgment for arrears in alimony in the sum of $335.50. A judgment of separation between the parties was entered in May, 1944, and such judgment directed the defendant-respondent to pay alimony in the sum of $10 a week. He failed to comply with the requirements of the judgment and was subsequently adjudged in contempt. Later, he made a motion for an order relieving him of the obligation to pay alimony in the sum directed on the ground that he was unable to make such payments, and also for leave to purge himself of contempt. Before this motion was heard the parties entered into an agreement whereby the plaintiff-appellant executed a release for the sum of $854.50, relieving the defendant-respondent of all obligation to support her. No repudiation of this agreement was made by appellant until she made a demand on August 26, 1946, for arrears of alimony in the sum of $335.50. An agreement of the character in question is not permitted under section 51 Dom. Rel. of the Domestic Relations Law, but under the peculiar facts of the case and as a matter of equity, plaintiff-appellant is not entitled to have judgment for the full amount of her unpaid alimony ( Gehring v. Gehring, 262 App. Div. 1065). Her right to judgment should be limited to the time after which she repudiated the release and made a demand for payment of alimony. Order reversed, on the law and facts, without costs, and judgment directed for the plaintiff for alimony in the sum of $10 per week for the period from August 26, 1946, up to and including the date of the entry of an order herein. All concur.