Opinion
January 23, 1973
Order, Family Court of the State of New York, New York County, entered November 3, 1972, unanimously reversed, on the law and on the facts and in the interest of justice, and a new hearing directed, without costs and without disbursements. The determination of the Family Court directed appellant to pay $1,140 of arrears and, if he failed to do so, to be committed to jail for 60 days. The appellant was obliged under an agreement to pay $80 per week for the support of his wife and $100 per week for the support of his child, unless and until his wife remarried, in which event the support for the former wife was to be discontinued and the support for the child reduced to $75 per week. The wife moved to California. It was respondent's defense that in a telephone call to his wife she admitted that she was living with another man whom she contemplated marrying and that it would be agreeable to her, in anticipation of that event, that the support payments be reduced to $75 per week — which sums respondent claims to have paid. The learned court disbelieved this testimony, which was well within her province. However, in the course of the hearing the defense was unduly hampered by rulings that quite proper questions addressed by respondent were leading, and by characterization as hearsay of respondent's narration of his telephone conversations. Moreover there was no adequate showing that the respondent was able to pay the sum awarded as arrears, so the direction for incarceration was premature.
Concur — McGivern, J.P., Murphy, Steuer, Tilzer and Capozzoli, JJ.