Mandel v. Mandel

Order reversed on the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to defendant to renew the motion on showing that conditions have changed. We have no doubt that there is authority in the court to modify a judgment of this kind. (Kunker v. Kunker, 230 App. Div. 641; Holahan v. Holahan, 234 id. 572; Severance v. Severance, ante, p. 799.) The question is always one of discretion. In this case it appears that the payment of alimony and maintenance for the wife and children has been secured by a surety bond to the extent of $100,000. Regardless of the financial condition of the defendant, the situation of the plaintiff requires that the sum secured to be paid shall be exhausted before there is modification of the judgment in that respect. It would be futile to make inquiry through a reference concerning the defendant’s financial condition under these circumstances. He is threatened neither with proceedings in contempt nor with sequestration. When the secured funds are exhausted and such threats become imminent, it will then be time to consider the subject of the defendant’s financial status and the question of modification. Lazansky, P. J., Kapper, Hagarty, Carswell and Davis, JJ., concur.