| N.Y. App. Div. | Nov 5, 1937
Memorandum. Following defendant’s default in payments due under the separation agreement, plaintiff retained her right of action to recover past due payments thereunder, if any, until a termination thereof by some act on her part which in legal effect repudiated the agreement. (Breiterman v. Breiterman, 239 A.D. 709" court="N.Y. App. Div." date_filed="1934-01-19" href="https://app.midpage.ai/document/breiterman-v-breiterman-5329747?utm_source=webapp" opinion_id="5329747">239 App. Div. 709; Pinkus v. Pinkus, 230 id. 791; O’Brien v. O’Brien, ante, p. 427.) We do not construe the separation agreement as expressing an intent to make provision for counsel fee and the expense of defraying a matrimonial action brought by the husband (the defendant herein) against this plaintiff. Accordingly we believe that plaintiff’s application for counsel fee (without alimony) in a divorce action brought against her by her husband, and granted to her on February 27, 1936, did not constitute a repudiation by her of the separation agreement. (Smith v. Smith, 127 Misc. 764" court="N.Y. Sup. Ct." date_filed="1926-06-04" href="https://app.midpage.ai/document/smith-v-smith-5419714?utm_source=webapp" opinion_id="5419714">127 Misc. 764, 765.) We conclude, however, that such a repudiation by the plaintiff did occur on July 27, 1936, when she applied for and was granted alimony in an annulment action brought against her by this defendant. In view of her
All concur. Present — Sears, P. J., Edgcomb, Crosby, Lewis and Taylor, JJ.
Judgment modified on the law by reducing the directed verdict to the sum of $185 as of the date of the rendition thereof, and as modified together with the order, affirmed, without costs of this appeal to either party.