
    Sibbie Seligman, Plaintiff, v. Solomon Seligman, Defendant.
    (Supreme Court, New York Special Term,
    November, 1906.)
    Calendar — Order on calendar — Preference.
    The preference given by subdivision 13 of section 791 of the Code of Civil Procedure to actions for divorce does not apply to an action for a separation. Motion by the defendant for a preference under subdivision 13 of section 191 of the Code of Civil Procedure.
    Steuer & Hoffman, for motion.
    Meyer Greenberg, opposed.
   Giegebioh, J.

The defendant in an action brought for a separation moves for a preference under subdivision 13 of section 191 of the Code of Civil Procedure, which reads as follows: “ 13. An action for absolute divorce in which an order has been made granting temporary alimony.” This subdivision was added by chapter 351 of the Laws of 1902 to the section as it had theretofore stood, making a further ground for obtaining a preference. In support of the motion it is argued that the spirit of the statute applies to actions for a separation as well as actions for a divorce, the distinctive feature authorizing a preference being the payment of alimony, and the provision with respect thereto being the same in an action for a separation as in an action for a divorce. An examination of the Code of Civil Procedure satisfies me, however, that this argument is wrong. Chapter 15, title I, of the Code of Civil Procedure, entitled “ Matrimonial Actions,” makes the following division and classification of such actions: “(1) Action to annul a void or voidable marriage; (2) action for a divorce; (3) action for a separation.” This distinction between actions for a divorce and actions for a separation is preserved consistently in the language of the entire title, the judgment in the one case, for instance, being denominated a judgment “divorcing the parties and dissolving the marriage” (§ 1156), and in the other case it is denominated a judgment “separating the parties from bed and board” (§ 1162) ; thus showing that the ancient distinction between divorces a vinculo and divorces a mensa et thoro was kept in mind, although the ancient language was not preserved in its entirety. The words “ separation from bed and board ” are the substantial (-(¡uivalent of the ancient divorce a mensa et thoro, sometimes designated a limited divorce in contradistinction from divorce a vinculo, otherwise denominated an absolute divorce. The fact that the subdivision under consideration employs the word absolute ” shows that this distinction between the two classes of divorces was in the mind of the Legislature, and that the intention was to limit the subdivision to actions for absolute divorce and not to include actions for a separation. There are other points urged in opposition to the motion; but, in view of the conclusion above reached,.it will not he necessary to consider them.

Motion denied, without costs.  