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Muller v. Muller

266 N.Y. 68 Court The trial court improperly permitted a Decision date 1934-12-31 English

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p. 68
Elizabeth C. Muller, Appellant and Respondent, v. Emil A. Muller, Respondent and Appellant.
(Argued December 6, 1934;
decided December 31, 1934.)
p. 69
John L. Class for plaintiff, appellant and respondent.
This being an action in equity for the specific performance of a contract providing for more than the mere payment of money, the trial court properly awarded judgment for the installments due after the date of the complaint, and properly directed payments in the future. (McGean v. Parsons, 150 App. Div. 208 ; Kilbourne v. Board of Supervisors, 137 N. Y. 170 ; De Mille Co. v. Casey, 115 Misc. Rep. 646 ; Greenleaf v. Blakeman, 40 App. Div. 371 ; 166 N. Y. 627 ; Bullock v. Bullock, 134 Misc. Rep. 250 ; 227 App. Div. 714 .)
David S. Romanov, Edward Nyer, Jacob Nass and Edward T. Beldegreen for defendant, respondent and appellant.
The trial court improperly permitted a
p. 70
recovery of installments due after the date of the complaint, and improperly directed payments in the future. (Werner v. Werner, 169 App. Div. 9 ; Bauchle v. Bauchle, 185 App. Div. 590 ; Ga Nun v. Palmer, 202 N. Y. 483 ; McGean v. Parsons, 150 App. Div. 208 .)

In so far as the decree herein gives judgment for the plaintiff against the defendant in the sum of $2,118, which sum comprises the balance due to the plaintiff from the defendant, with interest thereon, up to and including the 5th day of February, 1934, and directs that the plaintiff have execution therefor, it is affirmed.

The decree, as modified by the Appellate Division, is further modified by striking out that provision which directs the defendant to pay to the plaintiff at the office of her attorney $200 per month, commencing on the 27th day of March, 1934. Specific performance is not the appropriate remedy for the collection of money. As these amounts come due, if they are not paid, the plaintiff has her action at law.

We need not at this time determine the duty of the plaintiff to support her son under the terms of the agreement as it is not now in issue.

The judgment should be modified in accordance with this opinion and, as so modified, affirmed, without costs.

Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ., concur.

Judgment accordingly.

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