Mangone v. Mangone — 130 Misc. 712

Majority

p. 712

Margaret S. Mangone, Respondent, v. Nicholas Mangone, Appellant.

Supreme Court, Appellate Term, First Department,

November 18, 1927.

Headnote

Husband and wife — separation — defendant breached separation agreement by non-payment of weekly allowance and plaintiff commenced action for separation — denial of application for alimony did not entitle plaintiff to sue for entire unpaid weekly allowance — recovery limited to unpaid amounts due under agreement.

Plaintiff, who commenced an action for separation after defendant’s breach of a separation agreement by the non-payment of certain weekly amounts provided therein, on the denial of her application for alimony, did not become entitled to sue for the entire unpaid weekly amounts required to be paid under the separation agreement, since the commencement of the action for separation and the motion therein for alimony was a disavowal by plaintiff of the separation agreement and a rescission thereof. All that plaintiff can recover in this action, under the separation agreement, is the unpaid amounts due under the agreement, prior to the commencement of her action.

Appeal by defendant from judgment of the Municipal Court, Borough of Manhattan, Third District, in favor of plaintiff.

'Murray A. Harris, for the appellant.

Herman Roth, for the respondent.

The plaintiff, after a breach of the separation agreement" by the non-payment of certain weekly amounts provided therein to be paid by the defendant, elected to bring an action in the Supreme Court for a separation and there moved for alimony and counsel fee. The mere fact that the Supreme Court denied the plaintiff’s application for alimony, etc., at that stage of the action does not entitle the plaintiff to sue for the entire unpaid weekly amounts provided to be paid under the separation agreement. The bringing of the Supreme Court action for a separation and the motion therein for alimony and counsel fees was a disavowal by the plaintiff of the separation agreement and a rescission thereof. Therefore, all that the plaintiff can recover in this action on the separation agreement is the unpaid amounts due under the separation agreement for the months of May and June, 1926.

Judgment modified by reducing it to the amount of $120, with costs, and as thus modified affirmed, without costs of appeal to either party.

All concur; present, Delehanty, Lydon and Crain, JJ.