
    Rosalind P. Newport, Plaintiff, v. Harry M. Newport, Defendant.
    Supreme Court, New York County,
    April 11, 1928.
    Husband and wife — separation — institution of action for separation amounted to repudiation of separation agreement — defendant cannot avail himself of existence of agreement.
    In this action for separation, in which plaintiff asked for and obtained temporary alimony, defendant cannot set up a separation agreement which he concededly failed to perform. The commencement of the separation action amounted to a repudiation of the agreement and an election to rescind the same.
    Action for separation.
    
      Walradt & Blaney [Charles P. Blaney of counsel], for the plaintiff.
    
      Edgar I. Ahrwaler, for the defendant.
   Frankenthaler, J.

Defendant cannot avail himself of the existence of the separation agreement which he has concededly failed to perform. Plaintiff’s institution of this action for a separation in which she asked for and obtained temporary alimony amounted to a repudiation of the agreement and an election to rescind the same. (See Landes v. Landes, 172 App. Div. 758; Randolph v. Field, 165 id. 279.)

Judgment will be for plaintiff, with twenty-five dollars per week alimony. Defendant’s motions to dismiss the complaint, upon which decision was reserved, are denied, with exceptions. Submit findings.  