Crowder v. Crowder , 332 N.Y.S.2d 389 ( 1972 )

In an action in which the plaintiff wife was granted a judgment of separation in the Supreme Court, Queens County, on October 28, 1959, (1) defendant appeals from so much of an order of the same court, dated April 20, 1971, as denied his cross motion seeking forgiveness of accumulated unpaid alimony, and (2) plaintiff cross-appeals from the remainder of the order, namely, so much thereof as denied her motion to punish defendant for contempt of court for failure to pay alimony under the judgment. Order reversed, without costs, and matter remitted to Special Term for a hearing on all issues relating to defendant’s financial circumstances and his ability to pay, as well as the claims of waiver and estoppel herein asserted. The essential facts are best determined after the taking of oral proof, rather than on conflicting affidavits (Abbey v. Abbey, 7 A D 2d 910). Rabin, P. J., Munder, Martuseello, Latham and Benjamin, JJ., concur.