Glusker v. Glusker , 255 A.D. 861 ( 1938 )

In a matrimonial action, the plaintiff-wife has been awarded a judgment of separation and support. The defendant appeals from the entire judgment and the plaintiff also appeals from so much of the judgment as fixes her alimony at twenty-five dollars a week, commencing June 7, 1938. Under the facts in this case, the defendant is estopped from denying his responsibility for the plaintiff’s support. The amount of the alimony and the date from which it would be payable were peculiarly within the discretion of the trial court and we find no error in its exercise. Judgment affirmed, without costs. Carswell, Davis, Adel and Close, JJ., concur; Lazansky, p. J., dissents and votes for reversal and a new trial, with the following memorandum: Plaintiff concedes that she and her husband have lived separate and apart by consent since 1919. From 1919 until October 7, 1932, defendant paid plaintiff twenty-two dollars a week under an oral agreement. In an action in the Municipal Court it was held, in effect, that such oral agreement came to an end in October, 1932. Since that time defendant has paid nothing to plaintiff. No valid proof of ground for a judgment of separation was presented by plaintiff. There are no facts upon which an estoppel may be based. Judgment should be reversed and a new trial granted.