concurrence">Breitel, J. P.

(concurring). On the authority of Hoops v. Hoops (269 App. Div. 968), and Kennedy v. Kennedy (283 App. Div. 1040, affd. 308 N. Y. 944), I concur in the majority opinion.

While it is true that section 1170 of the Civil Practice Act confers power on the court to modify a final judgment, one would have thought that the parties by contract, fair and fairly arrived at, could waive their rights under the statute, except perhaps when there is danger of one of them becoming a public charge, or when one of them has become a public charge.

But the real rub is that the effect of holdings such as that here make perilous, if not nugatory, and therefore discourage, lump-sum settlements between divorced persons. I am not sure that this was ever the legislative purpose or that it is good policy. Such lump-sum settlements may frequently be of very great value to the former wife.

In the light of the authorities, however, the result in this case is supported, believing as I do that neither the Hoopscase (supra) nor the Kennedy case (supra) were limited in their holdings to former wives becoming or likely to become public charges.

Given the power, and given the doctrine that the court’s discretion will be exercised even in the face of a fair and fairly arrived at lump-sum settlement, and even though accompanied by the exchange of releases, the determination made is one with which I heartily concur.

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