¶1I dissent and vote- to affirm. The plaintiff here sues for additional alimony pursuant to a separation agreement. The agreement is clear that such additional payments are to be based upon an increase in the defendant’s *327net income. The reference to item 3 on page 3 of the husband’s Federal tax return for the year 1952 indicates that the net income there referred to was the sum remaining after all permissible deductions were taken. Obviously, alimony was not there listed because it was not then being paid. Since 1942, alimony has been an allowable deduction. The parties must be taken to have entered into the agreement with knowledge and in contemplation of existing law. If it were the intention of the parties to exclude an item properly allowable as a deduction from the computation of net income, it should have been expressly set forth. The term “ net income ”, in my view, is to be construed in its ordinary sense, and the intent of the parties as expressed in the language of the contract should be given effect. It is not for the court by construction to rewrite the agreement of the parties.
¶2McNally, J. P., and Eager, J., concur with Steuer, J.; Stevens, J., dissents and votes to affirm in opinion, in which Bastow, J., concurs.
¶3Determination of the Appellate Term appealed from and the judgment of the Municipal Court, reversed, on the law, with costs and disbursements to appellant in this court and with $30 costs and disbursements in the Appellate Term, and judgment directed in favor of plaintiff in the sum of $2,000, with interest and costs.