Weitz v. Weitz , 1 A.D.2d 1025 ( 1956 )

Appeal by plaintiff from an order modifying a final judgment of separation so as to reduce the support provision thereof insofar as it makes such reduction nunc pro tunc as of June 1, 1954. Order modified on the law by striking from the last ordering paragraph “June 1st, 1954” and by substituting therefor “June 17, 1955 ”. As so modified, order insofar as appealed from, affirmed, with $10 costs and disbursements to appellant. The findings of fact are affirmed. Respondent paid appellant $42.50 a week for the support and maintenance of herself and their son, pursuant to the final judgment of separation. The son entered military service on June 1, 1954, and attained his majority on May 1, 1955. On June 17, 1955, respondent moved to modify the judgment so as to provide for support for appellant only, retroactive to June 1, 1954, when the son entered military service. Special Term granted the application. This it was without power to do (Averett v. Averett, 110 Misc. 584, affd. 191 App. Div. 948; Haas v. Haas, 271 App. Div. 107; Griffin v. Griffin, 219 App. Div. 370; Rosenfleld v. Rosenfleld, 285 App. Div. 817). Under the circumstances the modification should have been granted as of June 17, 1955, when the application therefor was made (Harris v. Harris, 259 N. Y. 334). Wenzel, Acting P. J., Beldock, Murphy, Ughetta and Hallinan, JJ., concur.