Smiley v. Melnick

CourtUnited States State Supreme Court (New York)
Writing for the CourtCHARLES MARGETT
Citation289 N.Y.S.2d 58,56 Misc.2d 477
Decision Date11 April 1968
PartiesMorton H. SMILEY, Plaintiff, v. Barbara MELNICK, Defendant.

Page 58

289 N.Y.S.2d 58
56 Misc.2d 477
Morton H. SMILEY, Plaintiff,
v.
Barbara MELNICK, Defendant.
Supreme Court, Special Term, Queens County, Part I.
April 11, 1968.

Page 59

[56 Misc.2d 478] David Zweig, Jamaica, for plaintiff.

Irving Mandell, New York City, for defendant.

MEMORANDUM

CHARLES MARGETT, Justice.

This is a motion to dismiss each of the causes of action of the amended complaint and the entire amended complaint for legal insufficiency.

The plaintiff and defendant formerly were husband and wife. Three children were born of their marriage, the oldest of which is now ten years of age. The parties entered into a separation agreement on June 30, 1964 which was subsequently incorporated by reference into a Mexican divorce decree. Both parties have since married other spouses.

The aforesaid separation agreement required the plaintiff to pay the defendant $100 a week for her support and, in addition, the sum of $150 a week for the support of the three children. After the defendant's remarriage, a dispute arose as to the use of the monies being paid by the plaintiff for the support of the children. The plaintiff claims that pursuant to an oral understanding at the time the agreement was reached, $50 per week was to be deposited in an interest bearing savings account for the future education of the children, but that instead the defendant was diverting the fund to the use of her present husband. The plaintiff then unilaterally reduced his payments for the children's support to $100 a week and deposited the balance in a separate trust account for the benefit of the children. The defendant commenced a suit on the agreement in the Small Claims Part of the Civil Court and the plaintiff commenced the instant action.

Three causes of action are pleaded in the amended complaint. The second cause of action is to reform the separation agreement to include a provision that $50 a week be placed in an interest bearing fund which shall be used solely and exclusively for the education of the children and the son's confirmation. The third is for specific enforcement of either the alleged oral agreement or the written agreement as modified in accordance with the second cause of action.

Clearly, both the second and third causes of action are insufficient. 'It is firmly established that a court may not modify or change a private contract such as a separation agreement.' (Stillman v. Stillman, 20 A.D.2d 723, 724, 247 N.Y.S.2d 569, 571.) As the Court of Appeals stated in Nichols v. Nichols,...

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2 practice notes
  • People v. Siebenrock
    • United States
    • New York Court of Special Sessions
    • December 14, 1970
    ...had intended the requirement or personal knowledge of tose verifying Bills of Particulars, they should have said so, People v. Baratta, 56 Misc.2d 477, 288 N.Y.S.2d The Proof satisfied the Court that the defendant is guilty, and he therefore was fined $10.00. ...
  • Rattner v. Planning Commission of Village of Pleasantville
    • United States
    • New York Supreme Court Appellate Division
    • July 23, 1984
    ...§§ 7-712, 7-725; 113 Hillside Ave. Corp. v. Village of Westbury, 27 A.D.2d 858, 278 N.Y.S.2d 558; Matter of Kalen, 248 App.Div. 777, 289 N.Y.S.2d 58; cf. Matter of Gershowitz v. Planning Bd. of Town of Brookhaven, 69 A.D.2d 460, 473-474, 419 N.Y.S.2d 976, revd. on other grounds 52 N.Y.2d 76......
2 cases
  • People v. Siebenrock
    • United States
    • New York Court of Special Sessions
    • December 14, 1970
    ...had intended the requirement or personal knowledge of tose verifying Bills of Particulars, they should have said so, People v. Baratta, 56 Misc.2d 477, 288 N.Y.S.2d The Proof satisfied the Court that the defendant is guilty, and he therefore was fined $10.00. ...
  • Rattner v. Planning Commission of Village of Pleasantville
    • United States
    • New York Supreme Court Appellate Division
    • July 23, 1984
    ...§§ 7-712, 7-725; 113 Hillside Ave. Corp. v. Village of Westbury, 27 A.D.2d 858, 278 N.Y.S.2d 558; Matter of Kalen, 248 App.Div. 777, 289 N.Y.S.2d 58; cf. Matter of Gershowitz v. Planning Bd. of Town of Brookhaven, 69 A.D.2d 460, 473-474, 419 N.Y.S.2d 976, revd. on other grounds 52 N.Y.2d 76......

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