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JONAH BINDER v. BERTHA SCHENK (05/20/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT


May 20, 1968

JONAH BINDER, RESPONDENT,
v.
BERTHA SCHENK, APPELLANT

Gibson, P. J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.

Memorandum by the Court. Appeal from an order of the Supreme Court at Special Term which granted the judgment-creditor-respondent's application under CPLR 5226 by directing the judgment-debtor-appellant to make specified installment payments on account of the judgment. The proof was that appellant received, in addition to social security payments and whatever assistance was given her by her son-in-law and daughter, a salary of $30 per week from, and room and lodging in, the hotel which she had previously operated. Absent a stronger showing of "the reasonable requirements of the judgment debtor" (CPLR 5226), as to which she had the burden of proof (6 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 5226.11, p. 52-403), it cannot be said that the discretion conferred upon Special Term was improvidently exercised in directing installment payments of $10 per week. Relief on account of changed circumstances cannot be had pursuant to CPLR 5240 on the basis of statements in appellant's brief on appeal.

Disposition

Order affirmed, without costs.

19680520

© 1998 VersusLaw Inc.



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