I would .affirm the order and judgment in their entirety. Plaintiff sues in an action in the Supreme Court, New York County, to recover moneys due (support arrears) on a contract (separation agreement) éntered into between her and defendant, her former husband, which provided, inter alia, that the defendant should pay to the plaintiff for support and maintenance the sum of $2,500 per month. The provisions of this agreement were incorporated, but not merged, into a subsequent Mexican divorce decree. Immediately prior to plaintiff’s suit, the defendant had initiated a proceeding in the Family Court pursuant to section 466 (subd. [c], par. [ii]) of the Family Court Act to obtain a modification of the divorce decree on the ground that there had been a subsequent adverse change of financial circumstances. This pro*374ceeding, on consent, was transferred to the Supreme Court and consolidated with plaintiff’s contract action.
The majority, recognizing the right of the plaintiff to sue On the separation agreement, affirmed the determination of the Supreme Court, New York County (Rosenberg, J.) insofar as it awarded plaintiff the arrears sued for under' the contract. With the contract action disposed of, there only remains for consideration the proceeding initiated by the defendant for a downward modification of the support and maintenance provisions of the divorce decree. It is important to note that no action or proceeding has been or is brought by the former wife to obtain modification of the decree and as so modified, to enforce the terms of that decree. We are, therefore, faced with the proposition — whether a party subject to the support and maintenance provisions of (1) a divorce decree and (2) an unmerged separation agreement can obtain an amendment of such provisions in the divorce decree in the absence of any suit or controversy involving enforcement of that decree, but, on the contrary, in the presence of a suit to enforce the separation agreement.
It is clear that subdivision (c) of section 466 of the Family Court Act, conferring upon the Family Court concurrent jurisdiction with the Supreme Court to enforce and modify foreign decrees of alimony or support, did not create a new remedy authorizing the Family Court to judicially reform the separation agreement (King v. Schultz, 29 N Y 2d 718, affg. 36 A D 2d 810; Kaye v. Kaye, 38 A D 2d 753). McMains v. McMams (15 N Y 2d 283), relied on by the majority, clearly involves an application by a wife to modify a divorce decree. The Court of Appeals in the context of a real controversy, to wit, the . attempt by the wife to enforce her rights under the decree by obtaining an upward modification of the alimony provision and payment thereunder, held that proven need is a sufficient basis upon which to afford such relief. Further, the court reiterated “ that subsequent decree modifications leave the prior non-merged support contract still in existence qua contract ” (McMains v. McMains, supra, p. 285). I concur in the proposition that in an appropriate context a husband who alleges and sufficiently demonstrates change of circumstances should be afforded the same right by virtue thereof to attempt to reduce the amount of alimony. If the wife seeks to modify and, as so modified, enforce the support provisions of the decree, this is an appropriate context. If the wife seeks to enforce the support provisions of the agreement, then within the ambit of con*375tract law and. derivative equitable principles an appropriate context exists. However, on this record, in light of the affirmance of the award to the wife of support arrears under the contract and in the absence of any attempt to modify and, as modified, enforce the divorce decree, or to simply enforce the decree, no appropriate context is present.
Belief pursuant to section 466 of the Family Court Act is intended for real issues. Given the context of the petition in Family Court (subsequently transferred to the Supreme Court and consolidated as aforesaid), the former husband has not shown that he has suffered injury or any threat of harm under the decree. He has simply alleged a change in financial circumstances, but has not shown that he has been asked to comply with the support provisions of that decree. It is submitted that, in the absence of enforcement proceedings under the Family Court Act, the granting of the request by the former husband for downward modification of the support provisions of the decree would, on this record, be a futile exercise because the husband is requesting the equivalent of a declaratory judgment in the absence of a justiciable controversy. Under these circumstances, the husband seeks relief from a contingency; relief, moreover, which cannot offer a final determination of the rights of the parties in the event of future changes of circumstances with respect to either or both of the parties. For the Supreme Court to have entertained the petition for modification of the decree, on this record, would clearly have been an empty exercise having no consequence in reality and would represent an inconsistency of judicial purpose.
Nunez, J. P., and Tilzer, J., concur with Kupferman, J.; Murphy and Lupiano, JJ., dissent in part in an opinion by Lupiano, J.
Order and judgment, Supreme Court, New York County, entered on December 26, 1973 and January 24, 1974, modified, on the law, to reverse them insofar as they dismiss the petition in Action No. 2, and remand for a hearing, and otherwise affirmed, without costs and without disbursements.