259 A.D. 1093 | N.Y. App. Div. | 1940
Cross-appeals by plaintiff and defendant from an order which, after granting summary judgment to plaintiff in the sum of $187.50, directs that the action be severed as to the balance of plaintiff’s claim, with leave to defendant to defend, and denies defendant’s motion for summary judgment. Order modified by striking out the second and third ordering paragraphs and by providing in lieu thereof as follows: “ ORDERED, that defendant’s motion for partial summary judgment be and the same is hereby granted, and the complaint, save as to the sum of $187.50 for which summary judgment is granted to plaintiff, is dismissed.” As so modified, the order, in so far as appealed from, is affirmed, without costs. The non-payment by defendant of the instalments due under the separation agreement and his commencement of an action for annulment afforded the plaintiff an election to treat the contract as remaining in existence or as having been abandoned. (Randolph v. Field, 165 App. Div. 279; Ryskind v. Ryskind, 230 id. 481, 482.) By virtue of the application for temporary alimony, the procurement of an order directing the payment of same, and the enforcement of statutory remedies for collection thereof, the plaintiff made her election. Her rights under the contract and to alimony could not both co-exist. (Pinkus v. Pinkus, 230 App. Div. 791; Sockman v. Sockman, 252 id. 914.) While the order granting alimony provided that it was “ without prejudice to the said separation agreement,” this provision, in the light of the election to seek alimony, must be deemed to relate to the right of plaintiff to recover instalments which had theretofore accrued. The Nevada decree merely recognized the existence of the separation
