#### Leora B. de Lamoutte, Appellant, *v.*Alexander C. de Lamoutte, Respondent.

First Department,

December 11, 1908.

Husband and wife — decree of separation modified — residence of plaintiff.

A decree of separation, awarding alimony for the support of the plaintiff and her children on condition that she reside with the children in the county in which the defendant is compelled to reside by reason of his business should be modified so as to permit the plaintiff to live in another county at certain periods of the year, when it is shown that by so doing she can materially increase her income by teaching and it appears that the business of the defendant frequently calls him to that county so that he can visit his children.

Appeal by the plaintiff, Leora B. de Lamoutte, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of October, 1908, denying the plaintiff’s motion to resettle a decree of separation theretofore entered herein.

*Joseph A.*Keenan, for the appellant.

No appearance for the respondent.

Houghton, J.:

In March, 1908, a decree of separation from the defendant was granted to the plaintiff and she was given the custody of the two minor children, issue of the jnarriage. Alimony in the sum of $1,500, payable monthly, was granted to plaintiff for the support of herself and children on condition that she reside with such children in whatever county within the State of New York the defendant might be compelled to reside by reason of his business. The defendant was then and now is engaged in business at Binghamton in Broome county, and the moving papers show that plaintiff is a teacher of French and can add materially to her income if she be permitted to reside in the city of New York, to which city defendant’s business often calls him.

The plaintiff moved in pursuance of the provisions of section 1771 of the Code of Civil Procedure for a modification of the decree as to the payment of alimony by striking out the condition that it *284be payable only in case she should reside in such county as the defendant was compelled to reside by reason of his business, and inserting in place thereof that she be permitted to reside in the county of New York during the period between October and June in each year, and her motion was denied.

We think the modification should have been granted. The condition imposed was a very harsh and unusual one. It was doubtless inserted for the purpose of allowing the defendant to more easily visit his children. Its effect was to make the plaintiff and the children practically prisoners in the county in which the defendant chanced to be carrying on business on pain of forfeiture of any means of support. The defendant frequently has occasion, as the affidavits show, to go to the city of New York on business and can take advantage of those occasions to visit the children. The plain-. tiff by being permitted to reside in that city can add quite materially to her income by giving lessons in French.

There appears to be no reason to suspect that the application is not made in good faith. If it shall turn out not to be beneficial to herself and the children, the defendant will have the right to show the facts to the court and ask for any further modification of the decree that may be proper.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham, McLaughlin, Clarke 'and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.