¶1I dissent and vote to affirm the order denying the motion of the plaintiff to enter judgment. Depending upon circumstances the court, in its discretion, may either grant or deny a motion of this nature (Civ. Prae. Act, § 1171-b). In order to reverse an order entered in a situation where discretion may be exercised it must be found that the holding of the court constituted an abuse of discretion. It cannot be said that the court abused its discretion here. To the contrary, I conclude that to grant the relief sought would constitute an abuse of discretion. To allow the plaintiff to enter judgment would be permitting her to unjustly enrich herself at the expense of the defendant. This is not a case that falls within the general rule that alimony payments made prior to a reversal of a judgment are not recoverable. Here the payment was not due at the time it was made. It must, therefore, be considered that as of June 27 it was merely an overpayment and not an alimony payment until it became due. In addition, when this court reversed and decreed that the new payments ordered were to commence on June 28 it in effect expressly held that the alimony payment due on June 28 under the previous order was not to be paid. Consequently it could not have intended the result here reached by the majority. Nor could this payment — having been made in advance of the due date — have been spent for current necessities. The moneys directed to be paid for the infants’ support cannot be said to be needed now to support the infants as of then. Payments for the infants’ present support, I assume, are being made regularly. The infants cannot suffer by a refusal to enter judgment. I cannot vote to grant this motion which would permit the plaintiff to be paid twice. In consequence I would likewise deny the application for counsel fees.
¶2Breitel, J. P., Valente, Eager and Steuer, JJ., concur in Memorandum; Rabin, J., dissents in opinion.
¶3Order, entered on October 20, 1961, denying leave to enter judgment for arrears in payment of moneys for support of infants reversed, on the law and *614the facts and in the exercise of discretion, with $20 costs and disbursements to the appellant, and the motion granted, with $10 costs and an allowance of counsel fees to appellant in the sum of $250. Settle order on notice.