Levene v. Levene , 150 N.Y.S. 708 ( 1914 )

Per Curiam:

The order appealed from appoints a referee to take testimony and proof with his opinion upon the merits of defendant’s application for the reduction of the amount of alimony directed to be paid to plaintiff under a judgment of separation. On June 4, 1913, plaintiff commenced this action for a legal separation. On June 17, 1913, temporary alimony was granted at the rate of twenty dollars per week. The action was tried on December 22, 1913, defendant making no defense to the charges preferred against him in the complaint, the only question seriously litigated being that of the amount of permanent alimony to be granted, which was fixed by the decree at twenty-five dollars per week. Now defendant asks for a reduction of the alimony, but he makes no different showing as to his financial ability than he made upon the motion for temporary alimony and upon the trial, so that if everything he now says be accepted as true no ground is shown for the reduction he seeks. The alleged decrease in the earnings of the corporation of which he is an officer and stockholder is not material, because it does not appear that he ever received any dividends upon his stock, or that the amount of his salary was dependent upon the extent of the company’s earnings. Under such circumstances it is useless to appoint a referee. The order appealed from should be reversed, with ten dollars costs and disbursements, with leave to defendant to renew upon further facts showing a change in his financial condition. Present — Clarke, McLaughlin, Laughlin, Scott and Hotchkiss, JJ. Order reversed, with ten dollars costs and disbursements, with leave to defendant to renew as stated in opinion. Order to be settled on notice.