Majority
p. 769Rose Pachter, Respondent, v. Harry Pachter, Appellant.[1] Supreme Court, Appellate Term, First Department, November 11, 1927.
Headnote
Husband and wife —■ alimony — plaintiff on obtaining her final decree in separation action was precluded from claiming alimony awarded pendente lite in action •— complaint dismissed.Plaintiff on obtaining a final decree in her favor in an action for separation was precluded from claiming the amount awarded her as alimony pendente lite and consequently no action will lie to recover that money; the order for temporary alimony was enforeible only in the action in which it was made and became merged in the final judgment in that action.
Appeal by defendant from judgment of the Municipal Court, Borough of Manhattan, Second District, in favor of plaintiff.
O’Brien & O’Brien [Edward J. O’Brien of counsel], for the appellant.
Morris & Samuel Meyers, for the respondent.
The plaintiff’s right to the sum sued for arises from the order made in her behalf in her action against the defendant for a judicial separation, which order awarded her temporary alimony. It was an order enforeible only in the action in which it was made and it was merged in the final judgment in that action. This action was not commenced until some six months after the entry of such final judgment.
Judgment reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs.
All concur; present, Delehanty, Lydon and Crain, JJ.