Schatzberg v. Schatzberg — 220 A.D. 812

Majority

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Annie Schatzberg, Respondent, v. Louis Schatzberg, Appellant.

Headnote

Husband and wife ■ — • separation ■ — ■ discontinuance on reconciliation — order of discontinuance will not be vacated in absence of proof of misconduct by defendant after reconciliation — original alimony cannot be enforced.

Appeal from an order of the Supreme Court, made at the Bronx Special Term and entered in the Bronx county clerk’s office on November 30, 1926, granting

p. 813

plaintiff’s motion so far as to set aside a prior order of said court discontinuing a previous action between the parties hereto, and also from an order of said court entered on January 28, 1927, granting plaintiff’s motion to punish defendant for contempt of court.

We are of the opinion that the doctrine of Lawrence v. Lawrence ( 202 App. Div. 844 ) is applicable to this case. Until the plaintiff shows to the satisfaction of the court misconduct on the part of the defendant which justified her separation from him after the reconciliation, she should not be permitted to vacate the order of discontinuance or to enforee the provisions for alimony contained in the original decree. The orders appealed from should be reversed and the motions denied, with leave to the plaintiff to renew her applications upon additional papers. Present — Dowling, P. J., Finch, Martin, O’Malley and Proskauer, JJ.; Martin, J., dissenting. Orders reversed and motions denied, with leave to plaintiff to renew her applications upon additional papers.