Under a judgment of absolute divorce dated April 29, 1927, it was ordered “ that the defendant continue to pay to the plaintiff for her support and for the support of the children of the parties hereto during their minority, the sum of Sixty ($60) Dollars per week, * * * and that defendant give an undertaking with three sureties in the sum of Two Thousand five hundred ($2,500) Dollars, conditioned upon his compliance with the judgment entered herein * * * and that the interlocutory and final judgments in this action contain a provision that neither party will, until the expiration of three years after the entry of final judgment herein, apply to the Court for a modification of the provisions herein made for the support of plaintiff and /or the children of the parties hereto, excepting that if plaintiff remarry within said period of three years, defendant, if he so desires, may move for a modification of the provisions of the interlocutory and final judgments to be entered herein, regulating the provisions for the support of plaintiff and the children of plaintiff and defendant.”
The above provision in the judgment was based on a contract entered into between the parties February 21, 1927, which provided as follows:
“ (a) The said Maurice Goldberg agrees to continue to pay to the party of the first part, Lillian Goldberg, for her support and for the support of the children of the parties hereto during their minority, the sum of Sixty ($60) Dollars per week, on Saturday of each week at her residence, precisely as if the provisions of the judgment for a separation, heretofore herein mentioned, had been *262incorporated in an order for temporary alimony in the action for divorce.”
One of the two children of the marriage became of age March 27, 1931. On May 9, 1931, an application was made by the defendant to modify the judgment by reducing the amount of alimony which he was required to pay. Owing to certain unavoidable delays, the hearing on the application to reduce the amount of alimony was not set down until April 25, 1932. In the meantime, after February 20, 1932, the defendant complied only to a small degree with the existing order and is substantially in default. A motion was then made by the plaintiff to vacate the order of reference on the ground that defendant, was in default under the judgment. Defendant defaulted on this motion and the order-of reference was vacated.
Defendant claims that by the words of the decree the obligation to pay alimony at the rate fixed continued only during the minority of the children, and that upon the eldest son becoming of age the duty to pay in accordance with the direction contained in the decree terminated. The language of this decree, however, does not lend itself to any such construction. The provision is the normal one directing absolutely the payment of sixty dollars a week to the wife with a statement that such payments are for her support and that of the infant children during their minority. While it is undoubtedly true that the change in circumstances resulting from one of the children becoming of age would justify the court in modifying the provision contained in the decree, until such modification is made the obligation to pay continues. Defendant’s contention would invite imposing on the plaintiff the duty of applying to the court for a modification and reduction of the provisions in her favor. No such duty exists. The decree contains no provision by which the duty to pay alimony automatically terminates upon any of the children becoming of age. The fact that the provisions of the decree -under consideration were based upon an agreement between the parties does not lessen the binding force of the direction contained therein. (Levy v. Levy, 149 App. Div. 561; Kunker v. Kunker, 230 App. Div. 641.) The contract itself expressly stipulated that the payments were to be treated as if the amount fixed by this court on the modification of the order in the prior separation action had been continued and incorporated in the decree for absolute divorce.
In Dube v. Dube (230 App. Div. 494) the decree in a separation suit entered in favor of the wife provided for the payment of “ the sum of twelve dollars and fifty cents weekly for the support and maintenance of herself and child.” After the entry of the decree *263the wife obtained a divorce in Ohio and remarried. She thereafter moved to punish the husband for contempt for failure to pay the amount awarded under the New York decree. This motion was granted. On appeal this court, by Martin, J., said: “ If the facts alleged by him are correct his remedy was to seek a modification. (Harris v. Harris, 197 App. Div. 646; Gibson v. Gibson, 81 Misc. 508.) The plaintiff has thus far been able to avoid payment of all alimony for either his wife or child. He should be compelled to support his child. (Laumeier v. Laumeier, 237 N. Y. 357.) The court at Special Term pointed out the course for plaintiff to follow if he wished to avoid further liability to support his wife under this decree. (Gibson v. Gibson, supra.) Having failed to avail himself of that remedy he should be punished for contempt.”
In this case, as in the Dube case above referred to, the defendant has been given an opportunity to apply for a modification of the decree but defaulted on a motion to vacate the order of reference.
Under the circumstances, the court at Special Term was clearly right in adjudging him in contempt, and the order appealed from should'be affirmed, with ten dollars costs and disbursements, without prejudice, however, to a renewal by the defendant of bis application for a modification of the decree.
Finch, P. J., concurs.
Order reversed and the matter remitted to the Special Term for a rehearing. Settle order on notice.