Dobies v. Dobies

In an action brought by plaintiff for an annulment, he appeals from so much of the judgment in his favor as awards $35 per week for maintenance and support of the defendant, whose counterclaim for separation was dismissed. Judgment modified on the law and the facts by striking from the fifth decretal paragraph and from the second conclusion of law “ Thirty Five ($35.00) ” and inserting in place thereof “ Twenty-five ($25.00) ”. As thus modified, the judgment, insofar as appealed from, and the formal findings of fact and conclusions of law, are unanimously affirmed, without costs. Special Term made no findings of fact as to the net income or earning capacity of the plaintiff or of the defendant. On the record the award of $35 per week %vas excessive. Defendant lias an interest in the real property purchased in fhe names of both parties. (Small v. Small, 274 App. Div. 1071, motion for leave to appeal denied 275 App. Div. 770.) Defendant offered no contradiction of plaintiff’s testimony that there were notes outstanding for $3,500 for repairs on this property. Admittedly she earns $40 'per week and has no expenditure for food and lodging. Present — Nolan, P. J., Carswell, Johnston, Sneed and MacCrate, JJ.