Elsie H. Dula, Respondent, v. Robert B. Dula, Jr., Appellant

First Department, July, 1926. Elsie H. Dula, Respondent, v. Robert B. Dula, Jr., Appellant. Husband and wife — separation — alimony reduced to amount of defendant’s earnings on consent of defendant. Appeal from so much of a judgment of the Supreme Court, entered in the New York county clerk’s office on March 22, 1926, upon the decision of the court rendered after a trial at the New York Special Term, as directs defendant to pay plaintiff alimony of $5,000 per annum payable in equal monthly installments. [MAJORITY — Per Curiam.] Per Curiam. The trial of this action resulted in a decree of separation requiring the payment of alimony at the rate of $5,000 a year. The testimony offered by the plaintiff proved conclusively that defendant’s habits are such that he is incapable of earning any substantial income. The record discloses that he has never been able to earn more than $2,600 a year and that he has been dependent on his father. The judgment appealed from should be modified by reducing the allowance of alimony to $2,600 a year, an amount consented to by the appellant, although not otherwise warranted by the record, and as so modified the judgment should be affirmed, without costs. Present — Clarke, P. J., Merrell, Finch, Martin and Wagner, JJ. Judgment modified by reducing alimony to $2,600 a year, and as so modified affirmed, without costs. Settle order on notice.