(dissenting). I agree with the majority that this court has the power to modify the decree and grant the relief sought. (Hoops v. Hoops, 292 N. Y. 428; Civ. Prac. Act, § 1170.) I dissent, however, as to our use of that power in the instant case. In 1955 there was a post-divorce agreement of settle*92ment voluntarily arrived at in which plaintiff was represented by competent counsel. Payment was made to plaintiff in accordance with the terms of the agreement.
There is now neither pressing need nor danger that the plaintiff wife will become a public charge. (Cf. Hoops v. Hoops, 269 App. Div. 968; Kennedy v. Kennedy, 283 App. Div. 1040, affd. 308 N. Y. 944.) To adopt a concept of adjusted income in an effort to equate plaintiff’s standard of living with what it would have been had she continued to teach, is to make an unwarranted extension in the application of the law, and to render nugatory post-divorce agreements of settlement openly arrived at with full knowledge of the facts. Mere improvement in the financial condition of defendant does not justify such action.
M. M. Frank and Valente, JJ., concur with Rabin, J.; Breitel, J. P., concurs in opinion; Stevens, J., dissents in opinion.
Order modified on the law and on the facts and in the exercise of discretion to the extent of deleting the third and fourth decretal paragraphs providing for a reference and by directing that the divorce decree be modified so as to provide for weekly payments of $50 to the plaintiff commencing as of February 11, 1959, without costs on this appeal.
Settle order.