
    Winifred J. Gush, Plaintiff, v. Victor W. Gush, Defendant.
    Supreme Court, Special Term, Albany County,
    February 15, 1958.
    
      W. Joseph Shanley for plaintiff.
    
      Arthur J. Harvey for defendant.
   Herbert D. Hamm, J.

This is a motion to modify the final judgment of divorce herein on proof of the marriage of the wife after such final judgment by annulling the provisions of the judgment directing payments of money for the support of the plaintiff (Civ. Prac. Act, § 1172-c). It is not disputed that the wife has remarried since the final judgment. A letter has been submitted indicating that the wife is not presently living with her second husband. It will be assumed for the purposes of this motion that the letter states the fact since the plaintiff’s separation from her present husband is not material (cf. Gaines v. Jacobsen, 308 N. Y. 218, 225-226).

The provisions of the final judgment of divorce “ directing payments of money for the support of the wife ” may be stricken out, the wife having remarried, but without prejudice to the right of the wife to seek relief under the provisions of the contract of August 12, 1952 (Severance v. Severance, 235 App. Div. 799, mod. 260 N. Y. 432). No opinion as to her right to support under such contract is expressed.

Submit order in accordance with the foregoing on three days’ notice. The motion papers will be forwarded with the signed order.  