Jacques v. Jacques

The parties to tMs appeal are husband and wife. In November, 1925, they entered into a separation agreement by the terms of wMeh respondent was to pay to appellant thirty-two dollars a month for the support of herself and her son. That agreement provided that the wife should not bring any action for alimony or support either for herself or her son while the separation agreement existed. Respondent made but three payments under such agreement. In May, 1926, the wife applied to the Children’s Court of St. Lawrence County for relief. That proceeding apparently was abandoned as was a like proceeding instituted in the same court in July, 1927. In November, 1935, appellant obtained a final judgment of separation against respondent. She also brought another action against respondent to recover the sums due under the separation agreement and obtained a judgment by default for the sum of *757$3,834.52. That judgment was later reopened and respondent permitted to come in and defend. The case was tried before the court without a jury and judgment rendered in the wife’s favor for $128, with interest and costs, which made a total judgment of $293.70. On the trial of that action it was conceded that the husband had paid under the default judgment the sum of $276.58. He was entitled to be credited with that amount on the judgment entered. Appellant’s counsel entered a judgment for the full amount and gave respondent no credit for the sum paid. After giving the husband credit for the amount he had paid the balance due the wife is $17.12. Plaintiff’s counsel on July 15, 1938, issued a property execution against respondent for the full amount of the judgment. Respondent moved to vacate that and from the order vacating such execution and directing a satisfaction of the judgment on the payment to her of $17.12 the wife has appealed. Order affirmed, without costs. Heffeman, Sehenck and Foster, JJ., concur; Hill, P. J., and Bliss, J., dissent.