Kulzer v. Kulzer 11 A.D.2d 614

Appeal from an order of a Special Term, Supreme Court, Albany County. On March 13, 1959 the court at Special Term, after considering affidavits on both sides, directed defendant to pay $50 a week temporary alimony and $500 counsel fees in the wife’s action for separation. Defendant did not appeal and the order became final. On October 23, 1959 defendant moved for a reconsideration of the decision of the Special Term of March 13. The court has denied the motion and defendant appeals. Only an absence of jurisdiction; a demonstrated misapprehension of the merits of the application which led to the order of March 13; or a change of circumstances *of the parties, would warrant interference now with the order of March 13. The usual remedy available to defendant, if he felt aggrieved, would be to appeal. Fresh arguments on the merits of such an application to reconsider are not available, as, for example, the argument made now that the complaint states “a very weak cause of action ”, The original proof before the court by the wife was that defendant punched her; defendant’s affidavit said that “I slapped her, but not with my fist”. We think the motion to reconsider the original order was properly denied. The action should be promptly tried. Order unanimously affirmed, with $10 costs. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds,