
    Augusta Landes, Respondent, v. Leonard Landes, Appellant.
    First Department,
    May 26, 1916.
    Husband and wife ■— separation — action for separation after breach of separation agreement.
    Where the complaint in an action for separation shows that a separation agreement between the parties has been broken by the defendant, the right of the plaintiff to a separation and to support is an open question, and what she may have received under the agreement is a matter to he considered when the court makes its decree awarding alimony.
    Dowling, J., dissented, with memorandum.
    Appeal by the defendant, Leonard Landes, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of March, 1916, denying defendant’s motion for judgment on the pleadings consisting of a complaint and answer in an action for separation.
    
      Charles Goldzier, for the appellant.
    
      Max D. Steuer, for the respondent.
   Scott, J.:

I am for affirmance of this order, upon the ground that, whether or not the agreement between the parties was valid, the complaint shows that it has been broken by the defendant, and the plaintiff has now brought an action in derogation of it, which is equivalent to a repudiation of it on her part. That leaves open the entire question of her right to a separation and to support. What she may have received under the separation agreement is a matter to be considered when the court comes to make its decree awarding alimony.

The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.

McLaughlin and Laughlin, JJ., concurred; Dowling, J., dissented.

Clarke, P. J.:

Whatever effect the separation agreement may have upon the question of alimony, it does not oust the court of jurisdiction to entertain a separation action. I, therefore, concur in the affirmance of this order.

Laughlin, J., concurred.

Dowling, J. (dissenting):

I dissent upon the ground that there was a valid outstanding agreement of separation between the parties, under which the plaintiff had received and still retains property belonging to the defendant; that said agreement was never canceled or repudiated by the defendant, but he simply failed to make payments thereunder for a period of time, and that plaintiff is in no position to claim that the agreement can be repudiated by her until she has tendered back the property received by her thereunder. With such a valid outstanding separation agreement between the parties, there can be no action brought for a separation. (Randolph v. Field, 165 App. Div. 282.)

Order affirmed, with ten dollars costs and disbursements.  