Geraldine D. Schoonheim, Plaintiff, v. Lambertus R. P. Schoonheim, Defendant, 43 Misc. 2d 884

Birdie Amsterdam, J. Plaintiff moves for

summary judgment. The action is based on a separation agreement of November 15, 1955 as modified by further agreement of November 30, 1959. The original agreement provided for the payment of $10,000 annually by the defendant to the plaintiff for the support of herself and two children. The modifying agreement did not affect those provisions and except as modified, the original agreement was confirmed. No separate allocations to the wife and children were made with respect to the lump sum to be paid. One of the children died in January, 1956.

A prior action was instituted in July, 1960 upon defendant’s default and involving the period January 1, 1960 to July 31, 1960. The period of default involved in the present action is August 1, 1960 to December 31, 1963. A motion for

summary judgment was made in the prior action and on default of the defendant, judgment was entered on March 23, 1961. In this action defendant urges and alleges as a setoff, excess payments made in the period prior to July 31, 1960 and urges further that from and after July 31, 1960 plaintiff was entitled to receive each year only the sum of $7,500 per annum. At the time of the prior action the agreement had run for a period of over five years and the child had been deceased for a period shorter by only approximately two months.

Nevertheless, defendant suffered the entry of a judgment based upon the demand and obligation in the full sum of $10,000 per annum as provided in the separation agreement. To give effect to the defense and setoff at this time would destroy and impair the prior judgment. Apart therefrom and the

interpretation of the parties of their own agreement, in the absence of allocation, the death of one of the children does not require reduction in the amount to be paid. (Rehill v. Rehill, 306 N. Y. 126.) It is to be noted in addition that while the agreement provided for a reduction of the amount to be paid in the event of the remarriage of the plaintiff, no provision was made either in the original agreement or in the modifying agreement for any reduction in the event of the death of one child. The motion is granted.