
    Muriel Elsasser, Respondent, v. Herman Hugh Elsasser, Appellant.
    (Appeal No. 1.)
   Order denying motion to strike cut provision for alimony affirmed, with ten dollars costs and disbursements. The case having proceeded to judgment upon the personal service of the summons and complaint in this State, the defendant cannot attack the alimony provision of that judgment upon the theory of a former action pending by virtue of the service of the prior summons in California. Had the defendant after personal service of the summons and complaint appeared and answered setting up the pendency of the prior action, it may be that some disposition would have had to be made prior to the present judgment, but it would still have been within the sound discretion of the Special Term to permit a discontinuance of the so-called prior action; and it is now within the power of the Special Term to enter an order of discontinuance nunc pro tunc of the action first commenced. Lazansky, P. J., Kapper, Hagarty, Seeger and Carswell, JJ., concur.  