
    Walter H. Van Buren, Respondent, v Emma M. Van Buren, Appellant.
   Order unanimously reversed, without costs, and motion granted. Memorandum: The parties to this appeal separated in 1964 and were subsequently divorced. By the terms of an agreement executed in 1965 and later incorporated in the divorce decree, it was agreed that the wife and children were to have possession of the marital residence but that possession could be terminated at will by either party. If that happened, the husband promised to provide a suitable substitute residence. The husband acquired the marital residence in 1965 and sold it to third parties. This action was commenced in 1971 to obtain a corrective deed from the wife and she asserted a counterclaim for the expenses of a suitable substitute residence required by the separation agreement for the period 1965-1969. Summary judgment was granted to the husband (see 56 AD2d 708), leaving only the wife’s counterclaim for trial. The wife now seeks to amend her counterclaim to include expenses for the additional period, 1969 to 1976. Special Term denied the motion. Inasmuch as the obligation is contractual and continuing, we see no reason to require the wife to institute a new action, and we reverse (CPLR 3025, subd [b]). In doing so, however, we note that the wife, because of her delaying tactics, is rapidly exhausting any claim that she may have for the favorable exercise of judicial discretion. We, therefore, deny her the costs of this appeal. (Appeal from order of Niagara Supreme Court—amend answer.) Present—Marsh, P.J., Cardamone, Simons, Hancock, Jr., and Denman, JJ.  