Elise Elaine Weisbecker, Respondent, v. Charles Weisbecker, Appellant

Elise Elaine Weisbecker, Respondent, v. Charles Weisbecker, Appellant. First Department, April 5, 1940. Harry M. Marks of counsel [Benjamin E. Messler with him on the brief; Parsons, Closson & McIlvaine, attorneys], for the appellant. Herbert C. Smyth, Jr., of counsel [George Natanson with him on the brief; Herbert C. Smyth, Jr., attorney], for the respondent. [MAJORITY — Per Curiam.] Per Curiam. This motion for an order amending the final judgment herein by reducing the alimony by the sum of $1,500 a year was made by defendant at the Special Term pursuant to our decision in this case (258 App. Div. 790) wherein we indicated that an application to reduce permanent alimony by that sum properly might be made in view of the fact that one of the sons became of age on October 29, 1939. It is clear that defendant is entitled to the reduction on that ground under the provisions of the judgment without the necessity of a reference. The motion by plaintiff for counsel fees and expenses in opposing the application for this reduction should have been denied. The order should be reversed, without costs, the motion to modify the decree by reducing permanent alimony from the sum of $6,500 to the sum of $5,000 granted, and the cross-motion of plaintiff for allowance for counsel fees and expenses denied. Present — O’Malley, Townley, Dore and Cohn, JJ. Order unanimously reversed, without costs, the motion to modify the decree by reducing permanent alimony from the sum of $6,500 to the sum of $5,000 granted, and the cross-motion of plaintiff for allowance for counsel fees and expenses denied.