
    Olga Auerbach, Plaintiff, v. Julius Auerbach, Defendant.
    Supreme Court, Special Term, Hew York County,
    July 16, 1946.
    
      
      Robert Moers for defendant.
    
      Benjamin Esberg for plaintiff.
   Cohalan, J.

Defendant moves to modify the separation judgment entered in this court on December 2,1918, by striking therefrom the provision therein’for plaintiff’s support. On September 3, 1929, the plaintiff obtained a decree of divorce in Nevada in an action in which the defendant appeared. The validity of this decree is not put in issue. Defendant moves under section 1170 of the Civil Practice Act. Plaintiff urges-that he may not do so relying on Fox v. Fox (263 N. Y. 68, 71). Had the judgment been one of divorce plaintiff’s position might be well taken and since the judgment antedates section 1170 of the Civil Practice Act that section would not, be applicable. The judgment as pointed out was for separation, howevér, and such judgments, where the marriage continues in existence, are always subject to the power of this court to modify or change same. (Tonjes v. Tonjes, 14 App. Div. 542.) The plaintiff in this action, however, has by a decree of divorce terminated the marriage. When the marriage ended, any decrees providing for separate maintenance necessarily ended with it. The termination was brought about by an act of the parties. The judgment of separation was thereby exhausted and at that instant became a nullity. No modification of a judgment which has become a nullity is needed and an attempt to modify such a judgment would be a futile act. The motion to modify is .accordingly denied. The court has neither considered nor passed upon the rights and liabilities of the parties under the agreement of May 27, 1929."  