Opinion · Appellate Division of the Supreme Court of the State of New York
Rosen v. Goldberg
Rosen v. Goldberg, 28 A.D.2d 1051 (Appellate Division of the Supreme Court of the State of New York 1967)
- Type
- Opinion
- Court
- Appellate Division of the Supreme Court of the State of New York
- Jurisdiction
- New York
- Date
- 1967-10-27
- Topic
- general
Gibson, P. J. *1052Gibson, P. J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Gibson, P. J.
Citator
UpLaw has not yet analyzed Rosen v. Goldberg. The absence of a flag is not a finding that it is good law.
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ROSEN v. GOLDBERG,28 A.D.2d 1051[3d Dept 1967]
ROSALIE M. ROSEN, Respondent, v. STANLEY M. GOLDBERG, Appellant.
Appellate Division of the Supreme Court of New York, Third Department.
GIBSON, P.J.
Appeal (1) from an order of the Supreme Court at Special Term which granted plaintiff's motion for summary judgment in an action brought to recover the amounts due plaintiff from defendant, pursuant to the terms of a separation agreement, for the support and maintenance of the children of the parties' marriage and for reasonable attorney's fees incurred by plaintiff in this action to enforce the agreement; and (2) from the judgment entered on said order. We find unavailing the defense that the separation agreement is void under section 5-311 Gen. Oblig. of the General Obligations Law as embracing a contract to dissolve the marriage. That section was amended by section 12 of chapter 254 of the Laws of 1966 so as to add the provision: "An agreement, heretofore or hereafter made between a husband and wife, shall not be considered a contract to alter or dissolve the marriage unless it contains an express provision requiring the dissolution of the marriage or provides for the procurement of grounds for divorce." The contract before us contains neither such provision. The judgment awarded exceeds the sum demanded in the complaint because it includes amounts accrued for support payments subsequent to the commencement of the action. The complaint is amended accordingly, so as to conform to the evidence. (CPLR3025, subds. [b], [c].) The appellant in his reply brief concedes the authority of the Special Term upon adequate proof to grant counsel fees (seeFabrikantv.Fabrikant,19 N.Y.2d 154) and, indeed, the agreement here provides for that relief; but he attacks the award thereof in this case as arbitrary and unsupported by the proof. Plaintiff's attorney, a practitioner of over 35 years' experience, stated in an affidavit the nature and extent of the various services rendered and his opinion of their value. Although the recitals were in some respects somewhat general, the factual statements were, in the context of these particular proceedings, sufficient to enable the experienced Judge who heard the case to arrive at a proper evaluation, as he did; this court noting, also, that the averments which appellant now attacks were not controverted or questioned, nor was any objection taken to their form or sufficiency. Order modified, on the law and thePage 1052facts, so as to provide that the complaint be deemed amended to conform to the evidence and so as to demand judgment for $12,856.05 and appropriate interest, and, as so modified, affirmed; and judgment affirmed; with costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Gibson, P.J.