
    Marjorie L. Senf, Plaintiff, v. Henry W. Senf, Defendant.
    Supreme Court, Special Term, Erie County,
    August 19, 1963.
    
      William B, Mahoney for defendant. Lipsitz, Green & Fahrmger (Harold P. Fahringer of counsel), for plaintiff.
   Matthew J. Jasen, J.

This is a motion to vacate and set aside an order awarding plaintiff wife temporary alimony.

On April 17,1962 plaintiff wife instituted an action for separation against defendant herein and on May 15,1962 was awarded, temporary alimony of $75 per week. Defendant paid said alimony regularly until June 10, 1963 when he learned that his wife left New York State to obtain a divorce against him. On July 1, 1963 defendant was served with a summons and complaint issued in the State of Nevada in an action wherein plaintiff seeks a divorce against defendant and in said complaint she alleges she has been a bona fide resident of Nevada since May 2, 1963.

Defendant maintains that this court pursuant to section 1170 of the Civil Practice Act should vacate the order for temporary alimony granted May 15, 1962 inasmuch as the wife has abandoned her separation action in this State.

It is well-established law that the right to temporary alimony ceases when the action in which it was awarded is terminated by settlement, abandonment, discontinuance or dismissal of the action. (Polizotti v. Polizotti, 305 N. Y. 176.)

The only question presented to this court is whether the bringing of an action for divorce in a foreign State should he considered an abandonment by the wife of her action for separation in this State.

This court finds that it does.

The plaintiff abandoned her action for separation by going to Nevada and instituting an action for divorce. When the plaintiff chose to abandon her right to prosecute her action for separation, she lost the right to receive alimony which the defendant husband was directed to pay during the pendency of the action.

Therefore the order granting alimony is vacated nuno pro tunc June 10, 1963, the date of the defendant’s last alimony payment.  