Galyn v. Schwartz , 434 N.Y.S.2d 1 ( 1980 )

Silverman, J. (dissenting in part).

I would deny counsel fees to plaintiff wife.

Section 238 of the Domestic Relations Law allows expenses (presumably including counsel fees) in an action “to compel the payment of any sum of money required to be paid by a judgment or order” entered in various specified matrimonial actions. The plaintiff here is not suing to recover sums of money required to be paid under a judgment or order. Rather this is an action on a contract to recover sums payable under a separation agreement. To the extent that the Mexican decree required compliance with the terms of the separation agreement as to payment of money, it has, as a decree or order, been superseded by the Family Court order reducing the support provisions to $35 per week. This action is brought solely under the contract—to recover sums payable under the contract in excess of those directed by court order. Fabrikant v Fabrikant (19 NY2d 154) is thus inapplicable, as there the Mexican decree had not been superseded by an order of the New York court.

In other respects I agree with the majority.

Fein, J. P. and Sandler, J., concur with Sullivan, J.; Lupiano, J., dissents and Silverman, J., dissents in part in separate opinions.

Order, Supreme Court, New York County, entered on September 14, 1979, modified, on the law, without costs and without disbursements, the motion granted to the extent of awarding partial summary judgment to plaintiff for alimony accruing within the period from six years prior to the commencement of this action and the matter remanded for an assessment of both damages and counsel fees.