McMains v. McMains 20 A.D.2d 792

— In a divorce action, in which a judgment in the plaintiff wife’s favor awarding her alimony of $100 a month for her support was entered in 1945, the defendant appeals: (a) from an order of the Supreme Court, Queens County, dated July 5, 1963, which granted plaintiff’s motion, amended the *793judgment by increasing to $350 a month the alimony awarded to plaintiff, and directed defendant to pay $250 to plaintiff as a counsel fee upon the motion; and (b) from the decision of the court upon which such order was based. Order reversed on the law, without costs; and motion denied, without costs. Appeal from decision dismissed; no appeal lies from a decision. In 1944, prior to the entry of the judgment, the parties had entered into a separation agreement which provided for the payment by the husband to the wife of $100 a month for her support. The judgment thereafter entered likewise provided for the payment to the wife of $100 a month for her support. A divorce decree may not be amended so as to provide alimony payments to the wife in excess of those fixed by the parties in a separation agreement where the amount of the alimony is incorporated in the decree and where the agreement is not merged in the decree (Schmezel v. Schmezel, 287 N. Y. 21; Goldman v. Goldman, 282 N. Y. 296). Beldock, P. J., Christ, Brennan and Rabin, JJ., concur; Hill, J., not voting.