
    Lenox Burton, Respondent, v. Millicent Burton, Appellant.
    Second Department,
    May 1, 1912.
    Husband and wife—divorce—alimony—form of interlocutory judgment— provision for maintenance in prior judgment for separation.
    In an action by a husband for an absolute divorce a provision in an interlocutory judgment in his favor, whereby it is ordered that the plaintiff “ shall not be compelled to pay any further sums as alimony for the support of the defendant,by virtue of any judgment of this Court heretofore made,” does not affect provision made for the maintenance of the wife in a prior judgment for separation, since the interlocutory judgment in the action for divorce does not dissolve the marriage and does not affect the defendant in her status as a wife.
    
      The rights of the parties arising out of the dissolution of their marriage, if the final judgment shall so provide, may be determined in the interlocutory judgment in contemplation of the final judgment to become effective if such final judgment follow and when it is entered.
    Appeal by the defendant, Millicent Burton, from part of an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of November, 1911, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      William Adams Robinson, for the appellant.
    
      Thomas E. O’Brien, for the respondent.
   Jenks, P. J.:

In this action for an absolute divorce an interlocutory decree was entered in favor of the plaintiff for the adultery of his wife, the defendant. Thereby it was ordered that the plaintiff “shall not be compelled to pay any further sums as alimony for the support of the defendant, by virtue of any judgment of this Court heretofore made.” The appeal is from this provision.

The issue tendered is limited to adultery, but by stipulation it appears that “ the judgment” referred to was obtained heretofore in this State by this defendant against this plaintiff for separation, and that said judgment made provision for maintenance of the wife. The interlocutory judgment in this case did not dissolve the marriage (Matter of Crandall, 196 N. Y. 127) and did not affect the defendant in her status as a wife or as to her marital property rights. (Chase v. Webster, 168 Mass. 228; American Legion of Honor v. Smith, 45 N. J. Eq. 466; Norman v. Villars, L. R. 2 Exch. Div. 359.) But this interlocutory judgment in itself would indirectly modify an existing judgment, presumably in full force, in a' different cause of action between the same parties in respect to a matter directly adjudicated therein, although the status of the parties remained unchanged. I am of opinion that this could not be done. (See Byrnes v. Byrnes, 126 App. Div. 619, and cases cited.) If the case shall come to final judgment in favor of the plaintiff, then the judgment in the separation suit could not hamper the court for the reason that by such final judgment the status of the defendant as a wife is destroyed. (Tonjes v. Tonjes, 14 App. Div. 542; American Legion of Honor v. Smith, supra.)

The husband could have applied directly for modification of the provisions of a judgment which rested upon the mutual obligations of husband and wife. (Tonjes v. Tonjes, supra; Code Civ. Proc. § 1771.) Of course, the language of the court in People ex rel. Comrs. of Charities v. Cullen (153 N. Y. 636), that after a judgment of judicial separation the wife was no longer bound to perform.any of the duties of a wife,” is not to be strained to the implication that the wife when living apart could commit adultery without endangering a judicial provision for her maintenance, which rests upon the existence of her status as a wife. (Forrest v. Forrest, 3 Bosw. 692 et seq.) The rights of the parties arising out of the dissolution of the marriage, if the final judgment shall so provide, may be determined in the interlocutory judgment in contemplation of the final judgment to become effective if such final judgment follow and when it is entered.

Inasmuch as the provision may be proper but premature in form, the interlocutory judgment should be modified in accord with this opinion, and as modified affirmed, without costs.

Thomas, Carr, Woodward and Rich, JJ., concurred.

Interlocutory judgment modified in accordance with opinion, and as modified affirmed, without costs.  