Newport v. Newport

131 Misc. 851, 228 N.Y.S. 313, 1928 N.Y. Misc. LEXIS 805

Opinion

Frankenthaler, J.

Defendant cannot avail himself of the existence of the separation agreement which he has concededly failed to perform. Plaintiff’s institution of this action for a separation in which she asked for and obtained temporary alimony amounted to a repudiation of the agreement and an election to rescind the same. (See Landes v. Landes, 172 App. Div. 758; Randolph v. Field, 165 id. 279.)

Judgment will be for plaintiff, with twenty-five dollars per week alimony. Defendant’s motions to dismiss the complaint, upon which decision was reserved, are denied, with exceptions. Submit findings.