Mooney v. Mooney — 10 Misc. 386

Majority

p. 386

Catharine Mooney, Appellant, v. James Mooney, Respondent.

(New York Common Pleas

General Term,

December, 1894.)

Headnote

Where a decree for the payment of alimony at the rate of twenty dollars per week “in sums of §40 semi-monthly" has been followed by the payrdent and receipt of such semi-monthly sums for six years without objection, the practical construction thus given to it by the parties "will be accepted by the court, and a claim that it contemplated fifty-two payments per annum of twenty dollars each cannot be sustained.

Appeal by plaintiff from an order of the Special Term which ■fixes the payment of arrears of alimony at $360 instead of .$940.

Oharles W. Goleman, for respondent.

Henry Schmitt, for appellant.

A decree of separation was granted on March 19, 1887, to the plaintiff, and the defendant was directed to pay her “the sum of twenty dollars per week * * * in the following manner: That is to say, in sums of ' forty dollars semi-monthly, on the first and third Mondays of each month.” Twenty dollars per week amount annually to $1,040; forty dollars semi-monthly to $960. Defendant paid the latter sum for over six years, up to September, 1893, add it does not appear that any other demand was made upon him during that period. In June and July, 1894, having been irregular in his payments of eighty dollars per month for several months, and being in arrears therefor, the plaintiff

p. 387

made a demand upon Mm for arrears of alimony, at the rate of $1,040 per annum, for the whole period from the date of the decree up to that time, and, payment not having been made, she instituted proceedings to punish him for contempt.

The court granted the motion in so far as it enforced unpaid alimony at the rate of eighty dollars per month, but declined, to adopt the plaintiffs view that the decree compelled the payment of any greater sum. In this view we agree. There seems to be a contradiction in the terms of the decree, which provides for the payment of twenty dollars per week by payments of forty dollars semi-monthly. This doubtless arose from the familiar habit of reckomng four weeks to the month, and clearly indicates that that method of computation was in the minds of the parties and counsel when weekly payments of twenty dollars were specified, and that fifty-two payments per annum of twenty dollars each were not contemplated. As the decree was drawn by plaintiffs counsel, it might, with propriety, be urged that it is to be construed most strongly against her, but it certainly has been construed in one way by both parties, as shown by the regular payment and receipt of forty dollars semi-monthly for over six years, without any proceedings having been taken during that time to enforce the payment of any greater sum. The construction now claimed by defendant having, therefore, been adopted by both parties, must, under the circumstances, be accepted by the court as them intention.

Order affirmed, with costs and disbursements.

Bischoff and Pbyob, JJ., concur.