The separation agreement of January 10, 1935, was invalid insofar as it attempted to relieve the husband from his liability to support the plaintiff (Domestic Relations Law, § 51; Kyff v. Kyff, 286 N. Y. 71). Heflin v. Heflin (177 Misc. 290, affd. 263 App. Div. 714) upon which the Official Referee in part based his determination, is clearly distinguishable. The agreement considered therein was made after a final decree of divorce. The provision of .section 1172-c of the Civil Practice Act giving the court discretionary power upon the application of the husband to modify the final judgment upon proof that the former wife is habitually living with another man is not applicable except as it affords some analogy to the facts here presented. Moreover, any such relationship had terminated prior to the commencement of this proceeding. We conclude that this is a proper ease for the exercise of judicial discretion pursuant to section 1170 of the Civil Practice Act and that justice requires the stated modification of the decree. We view as particularly compelling the proof that the plaintiff is a public charge and receiving support from the department of welfare of the City of New York. Under such circumstances the public is involved and justice requires that the defendant, who admitted having net assets of $300,000 and has been found guilty of adultery by the decree of this court, should contribute at least to some extent to the support of his former wife.
Order appealed from should be reversed and decree modified so as to provide that the defendant shall pay the plaintiff the sum of $25 per week permanent alimony and a counsel fee of $500. Settle order.