Reynolds v. Reynolds

I dissent upon the ground that the court was without power to award alimony while there was a valid outstanding separation agreement between the parties, which included a provision for the wife’s support. Judgment modified as directed in opinion and as modified affirmed, without costs. Order to be settled on notice.

On the argument appellant’s counsel stated that the sole object of the appeal was to protect his client against liability for duplicate payments, one of alimony as fixed in the judgment appealed from, and the other for payments under the separation agreement, and that he would be satisfied with such a modification of the judgment as would save appel*918lant from any sueh apprehended liability. The protection thus sought can be secured by modifying the second conclusion of law contained in the judgment nunc pro tune as of the date of its entry by adding thereto the words “ all payments so made to her to be credited as payments by the defendant on account of the separation agreement heretofore entered into between the plaintiff and defendant and dated October 26, 1911.” The judgment should be modified accordingly, without costs. Present — Ingraham, P. J., Clarke, Scott, Dowling and Hotchkiss, JJ.; Dowling, J., dissented.