Zeilner v. Zeilner

Order, entered on February 5, 1962, unanimously reversed and vacated on the law and the facts, without costs, and the matter remanded to Special Term for a hearing. There is an issue as to whether or not the defendant’s failure to pay alimony as directed by the judgment of this court was willful and contemptuous. The defendant claims that the plaintiff orally agreed to a reduction in the payments directed by the, judgment and that, over a period of 11 years, the plaintiff waived the payment of the full amount as directed. Furthermore, he claims that he was paying all that he was able to pay. Under the circumstances, a hearing should have been held upon the relevant issues. (See Kruger v. Kruger, 279 App. Div. 808.) Furthermore, there are issues requiring a hearing in connection with the application for the entry of a judgment under section 1171-b of the Civil Practice Act. (See Renkoff v. Renkoff, 285 App. Div. 876; Oritzland v. Oritzland, 6 A D 2d 808.) Concur — Rabin, J. P., McNally, Stevens, Eager and Steuer, JJ.