Faruolo v. Faruolo , 1937 N.Y. App. Div. LEXIS 5460 ( 1937 )

On a motion in contempt proceedings to compel the plaintiff to pay defendant wife certain sums as directed by the judgment, the plaintiff was held guilty of contempt and fined the amount so directed to be paid, with provisions for making payments in specified sums and thereby purging himself of the contempt. The appellant husband challenges the jurisdiction of the court to grant such relief and attacks the provisions in the judgment as void. It appears that the judgment signed was submitted by plaintiff’s counsel, who chose their own language. There was apparent agreement that the question of alimony and counsel fees was to be disposed of on the trial and be made a part of the judgment; this by stipulation either in writing or in open court —■ the record does not disclose the form in which such stipulation or agreement was made. Parties to a civil action may by their stipulations waive statutory or even constitutional rights and regulate procedure for themselves, and such stipulations are binding upon them unless contrary to public policy, and will be enforced by the courts. (Matter of Petition of N. Y., L. & W. R. R. Co., 98 N. Y. 447.) That rule will be applied here. The defendant is entitled to maintain this proceeding. (Barbieri v. Barbieri, 250 App. Div. 731. See, also, Page v. Page, 124 id. 421; Lonsdale v. Lonsdale, 41 id. 224, and Browing v. Browning, 221 id. 801.) However, we think the order should be modified in respect to payments, in view of the inconclusive statements of defendant concerning the amount of the plaintiff’s income, and of the latter’s positive statements as to the amount thereof, and, further, in view of payments made or attempted to be made by him. Accordingly the fourth ordering paragraph is modified so as to provide that $100 shall be paid on or before December 30, 1937, and the remainder in installments of seventy-five dollars a month beginning January 15, 1938. By making such payments promptly, the plaintiff may purge himself of his contempt. As so modified the order is affirmed, with ten dollars costs and disbursements to respondent. Hagarty, Carswell, Davis, Johnston and Adel, JJ., concur.