Dempsey v. Dempsey — 205 Misc. 495

Majority

p. 495

Jennie Dempsey, Respondent, v. Patrick Dempsey, Appellant.

Supreme Court, Appellate Term, Second Department,

January 18, 1954, resettled

January 21, 1954.

Vincent S. Martinelli for appellant.

Jennie Dempsey, respondent in person.

A claim for unpaid alimony cannot be made the basis for recovery in an independent action (Maynard v. Maynard, 112 N. Y. S. 2d 813 ). The exclusive remedy is an application in the matrimonial action pursuant to the provisions of section 1171-b of the Civil Practice Act.

The judgment should be unanimously reversed upon the law, without costs, and motion to dismiss the complaint granted.

p. 496

(Resettled, January 21, 1954.)

On the court’s motion the decision on this appeal, dated January 18, 1954, is amended to read as follows:

A claim for unpaid alimony under a domestic matrimonial judgment or order, cannot be made the basis for recovery in an independent action (Maynard v. Maynard, 112 N. Y. S. 2d 813 ). The exclusive remedy is an application in the matrimonial action pursuant to the provisions of section 1171-b of the Civil Practice Act.

The judgment should be unanimously reversed upon the law, without costs, and motion to dismiss the complaint granted.

Walsh, Golden and Ughetta, JJ., concur.

Judgment reversed, etc.