
    Mary L. Chamberlain, as Trustee of Maud A. Cuming, Resp’t, v. Mari A. Cuming, App’lt.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed February 24, 1890.)
    
    Divorce—Action for does not affect liability under separation articles.
    The liability of a husband under articles of separation is not released by the bringing of an action for divorce by the wife and application for alimony therein.
    Appeal from judgment in favor of plaintiff.
    
      George Gru, for resp’t; Walter Thorn, for app’lt
   Osborne, J.

Defendant and the above named Maud A. Cuming were husband and wife, and differences having arisen between them, they entered into certain articles of separation bearing date December 22d, 1887, under which the plaintiff was appointed trustee of Mrs. Cuming. This action was brought to recover certain sums of money alleged to be due from defendant under said articles of separation. Plaintiff obtained judgment at special term for $543 and defendant appeals from said judgment.

The substantial contention of the appellant is that he is relieved from any liability under said articles of separation because his wife subsequently commenced an action against him for a limited divorce in which she applied for alimony and counsel fees, and that, by the bringing of such action, she rescinded and can-celled the agreement for a separation; in said action for limited divorce the defendant obtained judgment in his favor.

The law on this subject has been effectually settled in two recent decisions of the court of appeals, against the contention of the defendant Clark v. Fosdick, 22 N. E., 1111; 27 N. Y. State Rep., 750; Galusha v. Galusha, 22 N. E. Rep., 1114; 27 N. Y. State Rep., 738. In both of these cases, notwithstanding the wives had obtained absolute divorces from their respective husbands, the court of appeals decided that the obligations of the-husband to continue to make the payments provided for by the articles of separation continues, in the absence of any condition fo> the contrary in the agreement for separation.

Certain exceptions were taken on the trial to the exclusion of testimony; we have carefully examined them and can find no error in the rulings of the learned trial judge.

Judgment affirmed, with costs..

Clement, Ch. J., concurs.  