Goshin v. Goshin , 281 A.D. 979 ( 1953 )

In a divorce action, plaintiff appeals from (1) an order granting motion of defendant husband for leave to serve an amended answer and from (2) so much of an order as denies, in part, her motion for an examination before trial. There are cross appeals from (3) an order granting in part and denying in part plaintiff’s motion to strike out the affirmative defense in the amended answer and from (4) an order allowing plaintiff with respect to the foregoing appeals a counsel fee and printing expenses. Orders granting leave to serve amended answer and granting counsel fee and printing expenses, affirmed, without costs. Ro opinion. Order denying in part motion for examination before trial modified by striking out the provision limiting in time the examination of defendant husband and his father, as individual and employer, and the production of books and records incident thereto to May 14, 1951, and by providing in lieu thereof that the examinations and the production of books and records be had as of January 1, 1944, to the present time; and by providing for examinations of the two banks as set forth in the notice of motion. As so modified the order, insofar as appealed from, is affirmed, without costs. Examination to proceed on ten days’ notice. In the light of the peculiar circumstances whereby the husband and his relatives are afforded an opportunity to have it appear that his earnings are gifts, a complete review of his financial status is warranted. Order granting in part motion to strike out defense reversed, without costs, and motion denied, without costs. Although the alimony provision in the separation decree is not conclusive with respect to fixation of alimony in the divorce action and does not. require plaintiff to bear the burden of showing change of circumstances and even though the financial condition of the husband warrants payment of more than $55 a week, the allegations contained in the affirmative defense are all material factors to be taken into consideration in making a determination with respect to alimony. Nolan, P. J., Carswell, Wenzel, Schmidt and Beldoek, JJ., concur.