¶1(dissenting). In my opinion, the proof fully supports the findings that defendant Mark Matthews knowingly misrepresented his true income and net worth to induce the plaintiff to consent to the transfer of the marital residence, held in her own name, and to a monthly allowance of only $100 for each of their three children; and that the plaintiff believed and relied upon these representations in executing the separation agreement.
¶2While it is true that well before 1950 the plaintiff made sworn statements disputing this defendant’s claim to being a man of modest means, it is equally clear that her allegations were based upon little more than an estimate of past living expenses. Thereafter, he succeeded in convincing her, as well as Mr. Justice Hooley apparently, that the alleged failure of his California business venture and the poor prospects of his New York business prevented him from according to his children more than relatively nominal support and that he needed the marital residence, or rather the proceeds upon its sale, as a nest egg to start over again in business. The plaintiff was, of course, understandably concerned at the time about her own uncertain status, having been previously adjudicated an adulteress, but she was not claimed to be an unfit mother by this defendant and he, himself, showed some concern over the effect of another trial on his own alleged adultery. Finally, an attorney who represented this defendant in 1950, George Naiman, testified upon the trial that he thought that, were it not for the efforts of Mr. Justice Hooley *227in asking him (defendant Mark Matthews) to stretch himself and do something more for the children, the settlement would never have been reached.
¶3Furthermore, since there was proof that the plaintiff was forced to go to work in the early 1950’s because of financial difficulties, and thus took it upon herself to support her children in a manner more commensurate with their father’s true (though undisclosed) means, I have no difficulty in voting to affirm an award of damages to her, based upon the difference between the amount provided in the separation agreement for child support and the amount she would have received for this purpose by agreement or court order had her husband’s true means been disclosed. Although the children have long since been emancipated, the award is consistent with our strong public policy against allowing a father to escape his obligations or to flout the law and does not constitute a total windfall to the plaintiff (see Denberg v. Frischman, 26 A D 2d 266).
¶4Latham, Acting P. J., Shapiro, Brennan and Benjamin, JJ., concur in Per Curiam opinion; Christ, J., dissents and votes to affirm the judgment insofar as appealed from, with an opinion.
¶5Judgment modified, on the law and the facts, by striking therefrom the first, second and third decretal paragraphs and substituting therefor a provision dismissing the first and second causes of action of the verified amended complaint as against defendants Mark Matthews, Theodore Schwartz and Joseph Matthews. As so modified, judgment affirmed insofar as appealed from, without costs.