Wells v. Hollister , 40 N.Y.S.2d 166 ( 1943 )

Per Curiam.

An order, under section 793 of the Civil Practice Act, is discretionary, and, while the stipulation of the defendant consenting to entry of an order under this section for payment of a specified sum is entitled to be considered, we do not deem it controlling upon the court, especially in view of the alleged change of circumstances since the stipulation was signed.

The order should be modified by referring to an official referee the question as to the debtor’s ability to pay a portion of his income on account of the judgments, pursuant to section 793, and the amount of payments to be ordered, if any, and as so modified affirmed, without costs.

Martin, P. J., Townley, Glennon, Cohn and Callahan, JJ., concur.

Order unanimously modified by referring to an official referee the question as to the debtor’s ability to pay a portion of his income on account of the judgments, pursuant to section 793, and the amount of payments to be ordered, if any, and as so modified affirmed, without costs. Settle order on notice.