Schirmer v. Schirmer

260 A.D. 1057, 24 N.Y.S.2d 344, 1940 N.Y. App. Div. LEXIS 6029

Opinion

-Action for separation brought by plaintiff wife against the defendant husband. Order granting temporary alimony and counsel fee reversed on the law, without costs, and the motion denied, without costs. The complaint does not state a cause of action. The existing judgment of separation in favor of the defendant husband precludes the granting of temporary alimony or counsel fee in this new action brought by the wife for a separation. The power of the court is purely statutory. {Ackerman v. Ackerman, 200 N. Y. 72.) The only means by which the prior decree may be vacated is by an application under section 1165 of the Civil Practice Act. So long as the prior decree is in full effect, a subsequent action for separation may not be maintained nor may an award of temporary alimony be had. {Hobby v. Hobby, 5 App. Div. 496; Beeber v. Beeber, 225 id. 757.) Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ., concur.