Evelyn E. Shea v. H. Gregory Shea

In an action commenced by the plaintiff wife without summons or pleadings under the New York Simplified Procedure for Court Determination of Disputes (Civ. Prac. Act, § 218-a et seq.; Rules Civ. Prac., rules 304-306), based upon a separation agreement between her and the defendant husband, to recover from him the moneys which she expended for the education of their infant son and to determine the defendant's responsibility for the son's future education, the defendant appeals: (1) from so much of a judgment of the Supreme Court, Westchester County, entered April 24, 1962 upon the opinion and decision of the court after a non-jury trial, as awarded $4,052 to plaintiff, and as adjudged that, under the terms of the separation agreement, defendant is obligated under certain stated conditions to pay the expenses of the son's college education; and (2) from an intermediate order of said court, dated January 15, 1962, which, inter alia, directed the non-jury trial of the issues. Upon the argument of this appeal, plaintiff, by permission of this court, has renewed her motion to dismiss the appeal. Motion to dismiss appeal granted; appeal dismissed, with costs. In our opinion, under the terms of the separation agreement, defendant has waived his right to appeal. We have, nevertheless, considered the merits; if we did not dismiss the appeal, we would have affirmed the judgment in any event. Ughetta, Acting P.J., Kleinfeld, Christ, Brennan and Hill, JJ., concur.