Opinion
August 24, 1945.
Julian Weiss for plaintiff.
Victor Lehman for defendant.
Generally, where there is a subsisting agreement between the parties for the separate support of the wife, the court cannot grant alimony until the contract is set aside or impeached. Where there is an issue as to the breach of an agreement, ordinarily the same cannot be determined on affidavits alone, but must await proper inquiry and proof. In the present instance, however, defendant concedes that he has not made the agreed payments. Under such circumstances, the court is warranted in finding a prima facie repudiation of the agreement and is authorized to fix temporary alimony and counsel fees in disregard of the agreement ( McCloskey v. McCloskey, N.Y.L.J., May 12, 1943, p. 1856, col. 2). Accordingly, plaintiff is awarded temporary alimony at the rate of $120 per week, out of which she shall pay all income taxes on the same, and which said payments shall commence from the date of the service of the summons and complaint, together with a counsel fee of $1,000, one half of which shall be paid within two weeks after service of a copy of the order entered hereon and the balance when the action is reached for trial.