
    Agnes Wheeler, Respondent, v. William E. Wheeler, Appellant.
    (Appeals Nos. 1 and 2.)
    First Department,
    December 23, 1937.
    
      
      Abraham L. Pomerantz of counsel [Julius Levy with him on the brief], for the appellant.
    
      Samuel Lerner, for the respondent.
   Per Curiam.

The evidence before the referee did not warrant a finding that the defendant had a present earning capacity of from $75 to $100 a week. While the defendant may have such potential capacity, there was lacking evidence of present opportunity to exercise it. While he offered proof through witnesses present at the hearing to substantiate his claim that it was impossible for him to secure employment in his fine of business at the present time, their testimony was not received. In these circumstances the application to punish for contempt should not have been granted, particularly with respect to the amount of alimony that accrued during his confinement upon a prior commitment.

The order granting plaintiff’s application to punish the defendant for contempt must be reversed, therefore, and the motion denied without prejudice to a renewal on or after February 16, 1938, or upon a showing that the defendant has become able to satisfy the accruals in whole or in part. This determination, however, is upon condition that the defendant in the meantime pay to plaintiff at least a third of whatever he may earn or receive and that hei furnish the affidavits directed to be served pursuant to the order of the Special Term, dated November 15, 1937, which affidavits in addition shall show effort to secure employment and with whom.

The order appealed from denying defendant’s application to reduce alimony should be reversed and the motion granted to the extent of reducing alimony to the sum of twenty-five dollars weekly, without prejudice to an application on the part of the plaintiff to increase such amount upon a showing of a change of circumstances.

Present — Martin, P. J., O’Malley, Townley, Dore and Cohn, JJ.

Order granting plaintiff’s motion to punish defendant for contempt unanimously reversed, and the motion denied without prejudice to a renewal on or after February 16, 1938, or upon a showing that the defendant has become able to satisfy the accruals in whole or in part. This determination, however, is upon condition that the defendant in the meantime pay to plaintiff at least a third of whatever he may earn or receive and that he furnish the affidavits directed to be served pursuant to the order of the Special Term, dated November 15, 1937, which affidavits in addition shall show effort to secure employment and with whom. Order denying defendant’s application to reduce alimony unanimously reversed and the motion granted to the extent of reducing alimony to the sum of twenty-five dollars weekly, without prejudice to an application on the part of the plaintiff to increase such amount upon a showing of a change of circumstances. Settle order on notice.  