
    Hulda Comstock, Plaintiff, v. Joseph H. Comstock, Defendant.
    (Supreme Court, New York Special Term,
    February, 1906.)
    Alimony — Modification, discontinuance and release of alimony — Permanent alimony: Payment and enforcement—Where plaintiff is restrained.
    Where, upon defendant’s motion to be relieved from the further payment of alimony directed by the final judgment, it appears that plaintiff has remarried and that the available income of her present husband approximates twice the income of the defendant whose financial circumstances have probably deteriorated, the court, in its discretion under sections 1759 and 1771 of the Code of Civil Procedure, may modify the judgment by annulling and setting aside the provisions therein regarding alimony.
    Where by the order to show cause upon which such motion is based the plaintiff is restrained from enforcing' the order for alimony, the defendant’s neglect to pay it is not a contempt.
    Motion by defendant, against whom final judgment has been entered in an action for divorce, asking to be relieved from the further payment of alimony.
    Edwin LT. Whitfield, for defendant,
    Ivins, Mason, Wolff & Hoguet, for plaintiff.
   Blanchard, J.

This is a motion by the defendant, against whom final judgment has been entered in an action for divorce, asking to be relieved from the further payment of alimony directed in such judgment. The affidavits show that the defendant’s income has not increased, but probably diminished, since judgment was entered, and that the plaintiff has remarried, and that the available income of her present husband approximates twice the income of the defendant. As appears from sections 1759 and 1771 of the Code of Civil Procedure, alimony is granted for the support of the plaintiff as justice requires, having regard to the circumstances of the respective parties; and, upon satisfactory proof that justice requires a modification of the judgment as regards alimony, such modification will be made. Alimony is not determined according to the rule of damages applicable to torts. In the absence of proof, upon the trial, of the alleged tortious acts of the defendant, the court is unwilling, upon this motion, to include in the computation of alimony the amount of damages, as such, alleged to be caused by such acts. Such expenses, at most, can be regarded as merely one item in the necessary costs of the plaintiff’s support. It does not convincingly appear that the cost of the plaintiff’s support has increased since the divorce. It clearly appears,.on the other hand, that the plaintiff’s financial circumstances have been greatly improved by her remarriage, and that the defendant’s financial circumstances have not improved, but probably have deteriorated. The fact of remarriage, merely in itself, is perhaps not an element to be considered. Kiralfy v. Kiralfy, 36 Misc. Rep. 407; Compare Shepherd v. Shepherd, 1 Hun, 240, affd., 58 N. Y. 644. No case, however, has been presented which precludes the court, upon this motion tó vary the amount of alimony, from considering changes in the circumstances of the parties, to whatever, cause they may be due. The following cases, upon which the plaintiff relies, are not only distinguishable from the facts of the present case, but are rested upon an earlier statute, which contained no provision for varying the plaintiff’s alimony after final judgment of divorce. Shepherd v. Shepherd, supra; Stevenson v. Stevenson, 34 Hun, 157; Park v. Park, 18 id. 466, affd., 80 N. Y. 156; Kamp v. Kamp, 59 id. 212; 3 R. S. (5th ed.), p. 236, § 58; Id. p. 239, § 73. The facts of this case resemble those presented in Kiralfy v. Kiralfy, supra, and the rule there laid down states the law applicable to the present case. Since the order to show cause, upon which the present motion is made, restrained the plaintiff from enforcing the order of alimony against the. defendant, the defendant is not punishable for contempt in neglecting to pay alimony since the making of said order to show cause. Upon all the facts it seems proper that the judgment of divorce be modified, and the provision regarding alimony annulled and set aside.

Ordered accordingly.  