I agree with the result reached by my colleagues. I do so, however, solely because the factual situation presented by the record meets the requirements of subdivision (5) of section 170 of the Domestic Relations Law. Unquestionably, plaintiff cured his initial failure to comply with the judgment of separation granted on January 27,1958. Standing uncontradicted is his contention that he has fully performed his obligations under the judgment, as modified, for at least eight years. Under these circumstances I am impelled to conclude that “ satisfactory proof has been submitted by the plaintiff that he * * * (has) substantially performed all the terms and the conditions of such decree or judgment.” (Domestic Relations Law, § 170, subd. [5].) A contrary conclusion would forever deny relief to anyone who may have once failed to comply fully with a decree or judgment, despite a long and continuous history of complete performance thereafter. I do not read the provisions of this section to bar, nor do I find any legislative intent which would bar, relief to one who had once violated such a decree but who subsequently had fully met and complied with all his obligations provided therein.
DelVecchio, J. P., Marsh and Mottle, JJ., concur with Henry, J.; Gtabrielli, J., concurs in separate opinion.
Judgment insofar as it dismisses the complaint unanimously reversed on the law and facts and judgment of divorce granted, and otherwise judgment affirmed, all without costs.