Griffin v. Griffin — 219 A.D. 370

Majority

p. 370

Grace H. Griffin, Respondent, v. William H. Griffin, Appellant.

First Department,

February 11, 1927.

Headnote

Husband and wife — alimony — motion to resettle order resettling order reducing alimony so as to make reduction effective as of date of original order — further modification is unnecessary as no part of alimony paid out under decree prior to modification can be recovered.

An order resettling an order modifying an interlocutory decree of divorce by reducing the alimony will not be further resettled so as to make the reduction effective as of the date of the original order, for the defendant cannot recover any amount of alimony paid out under the decree before it was modified, and, therefore, will not be allowed indirectly by recoupment to do the same thing.

p. 371

Motion by the plaintiff, Grace H. Griffin, to resettle an order of this court entered herein on the 6th day of December, 1926, modifying upon appeal an interlocutory decree, so as to provide that the reduction of alimony from $4,500 to $3,000 a year should take effect from date of said order.

Warren Leslie, for the motion.

William J. Cullen, opposed.

The order sought to be resettled has already been resettled by an order of this court entered on the 24th day of December, 1926 ( 218 App. Div. 837 ), so that the motion must be treated as directed to a resettlement of the latter order. Further modification of the order is unnecessary, as no part of the amount pajd out to the plaintiff as alimony under the decree before it was modified can be recovered back (Averett v. Averett, 110 Misc. 584 ; affd., 191 App. Div. 948 ; Matthews v. Matthews, 210 id. 652), and defendant cannot have indirectly by recoupment what he could not directly obtain by restitution.

The motion should, therefore, be denied.

Present — Dowling, P. J., Finch, McAvoy, Martin and O’Malley, JJ.

Motion denied.

Cases cited

Averett v. Averett 110 Misc. 584 N.Y. Sup. Ct. p. 371