26 A.D.2d 698 (1966)

In the Matter of Ann Karlin, Respondent, v. Martin Karlin, Appellant

Appellate Division of the Supreme Court of the State of New York, Second Department.

July 12, 1966

Order affirmed, without costs.

No opinion.

Benjamin, J., dissents and votes to reverse the order and to grant a new trial, with the following memorandum:

In my opinion, the proof sufficiently establishes that the husband has a disabling injury which will make him unable to work for an indefinite period of time. It also establishes that, apart from such injury, his income has decreased and his debts have increased since he made the separation agreement in 1963 whereby he agreed to pay about $7,500 a year for the support of his wife and two children. In view of that proof, it was improper for the trial court to find that there had been no change in circumstances warranting a reduction in the support allowances. Moreover, it appears that the separation agreement, when made, was improvident insofar as the husband was concerned, since it obligated him to pay substantially more than he could afford in light of his then income. On this record, it seems clear that the husband cannot pay the sums directed by the Family Court order, and the inevitable result, if it stands, will be his jailing for nonpayment. In the interests of justice there should be a new trial at which, at the very least, there should be further medical proof, preferably from independent, impartial physicians, as to the extent and probable duration of respondent's injuries.


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