Opinion
June 1, 1976
In an action in which the plaintiff wife was granted a judgment of divorce, she appeals from an order of the Supreme Court, Nassau County, dated December 16, 1975, which denied her motion to resettle or, in the alternative, to modify the said judgment (which motion is treated by us as one to vacate the judgment to the extent that it provided that she pay alimony to the defendant husband [see Goldspinner v Goldspinner, 52 A.D.2d 837]). Order reversed, on the law, without costs or disbursements, and motion granted. No fact questions were considered on this appeal. The judgment of divorce ordered the plaintiff wife to pay the defendant husband alimony. That provision of the judgment was based upon a stipulation entered into between the parties which was not merged into the judgment. Special Term was without authority to order a wife to pay a husband alimony. The motion should have been granted to the extent of vacating that part of the judgment of divorce which provided for alimony payments to defendant. We do not pass upon the validity and enforceability of the stipulation as a contract. Gulotta, P.J., Hopkins, Martuscello, Latham and Shapiro, JJ., concur.