In 1970, the parties entered into a separation agreement which provided that the defendant husband should pay to the plaintiff for support and maintenance the sum of $2,500 a month. Shortly thereafter, a decree of divorce was entered in Mexico incorporating but not merging the provisions of the separation agreement and directing that alimony be paid in the aforesaid sum. The plaintiff wife at the time of the divorce decree and at the present time has a very substantial personal income aside from that derived from the alimony payments. At the time of the divorce decree, the husband enjoyed an income in six figures and had a net worth in excess of two million dollars. Among other things, he was the president of a corporation engaged in dealing with franchised General Motors’ dealers. He owned a 25% interest in a corporation which, in turn, owned 44% of the stock of the company of which he was president, and which stock was selling at $29 a share. Thereafter, there were substantial financial reverses and his interests were wiped out. In 1971, his gross income was some $8,000.
In recognition of the obvious deterioration in the husband’s financial circumstances, the parties entered into an arrangement pursuant to which the husband made a payment of $7,500 on arrears of some $30,000, and the wife agreed to take no action for a year to recover any amounts due.
*372The wife has not remarried, but the husband has, and there are two children of this new marriage.
The husband’s ability to make payments not having been enhanced, and an impasse having developed with respect to the amount of payment to be made, the husband commenced a proceeding in the Family Court under subdivision (c) of section 466 of the Family Court Act, seeking a modification of the support provision on the ground of a change in circumstances since the entry of the divorce decree. The wife then commenced an action in the Supreme Court to recover on the contract some $60,000 of arrears in support, and on her motion and with the, consent of the husband, the Family Court proceeding was removed to the Supreme Court and consolidated with the action on the contract.
The consolidation, of course, was based on common questions of law and fact (CPLR 602, subd. [a]; Millard v. Millard, 44 A D 2d 812), and the Supreme Court would have" jurisdiction over whatever issues are raised. (Kagen v. Kagen, 21 N Y 2d 532.) Actually, the wife is suing on the separation agreement and tries to distinguish a suit with respect to the. divorce decree, because it is clear that with respect to a divorce decree (albeit a foreign decree) there would be jurisdiction for the Family Court and, in turn, the Supreme Court to make such modification with respect to alimony as the circumstances require. (Family Ct. Act, § 466, subd. [c]; Matter of Seitz v. Drogheo, 21 N Y 2d 181; Matter of Silver v. Silver, 45 A D 2d 110.)
The decision of the court at the Individual Calendar Part granting summary judgment in favor of the plaintiff wife on the separation agreement and dismissing the transferred Family Court petition by the husband for a modification, was on the ground that there were no genuine triable issues, and further that with respect to the petition there was no genuine controversy, because the wife respondent was not threatening to enforce her remedies under the decree.
We affirm the determination with respect to the arrears sued on under the contract, but reverse and remand for a hearing with respect to the petition, on the law, without costs.
In McMains v. McMains (15 N Y 2d 283), where a valid separation agreement was incorporated in but not merged with a divorce decree, a wife was allowed to show that her circumstances were such that a modification for an increase was necessary. This in the face of a separation agreement providing for support in an amount reasonable when made. The dissent by Judge Fuld clearly raises the issue before this court (pp. *373293-294): “ In sum, then, it is my view that, although a court has the statutory power to modify a decree, even though there is a separation agreement which survives the decree, the court may not exercise that powér if, as in the case before us, to do so would impair the rights of either party under their existing and valid agreement.”
The holding in the McMains case is referred to in Law and the Family iby Foster-Freed (§ 28:27, p. 428) as follows: ‘ ‘ Thus, the Court of Appeals has held that the alimony provisions of a divorce decree predicated upon a separation agreement, which was valid and adequate when made and which expressly survived the decree, might be modified so as to increase the amount of alimony. It was emphasized by the court that section 236 of the Domestic Relations Law unified and broadened the court’s discretionary power.”
Under section 236 of the Domestic Relations Law, with respect to alimony, the circumstances of the parties are considered, and pursuant to the 1968 amendments, also ‘ ‘ the ability of the wife to be self supporting.”
Clearly, if a wife’s special needs allow an increase in her alimony despite an agreement for a fixed amount, a husband who alleges that he is “ totally incapable ” of meeting his obligations, should have the same right by virtue of his special needs to attempt to reduce the amount of alimony. McMains v. McMains cannot stand merely for half of this proposition.*
The order and judgment should be reversed on the law insofar as they dismiss the petition in Action No. 2 and the proceeding remanded for hearing, without costs or disbursements.
Cf. Wolf v. Illustrated World Encyclopedia, 41 A D 2d 191, 193 [1st Dept., 1973], affd. 34 N Y 2d 834 (1974) (Mem.)