We agree with the Trial Term that the separation agreement alleged in the second cause of action was repudiated by the wife in the counterclaim for “ suitable maintenance ” which she interposed in the New Jersey action. The issues raised by that counterclaim were tried in the New Jersey suit and were therein determined against the wife by the final decree of divorce as entered in favor of the husband on November 22, 1938. It follows, as the Trial Term held, that after that date the separation agreement alleged in the second cause of action had no force or effect.

The order of the Appellate Division should be reversed and the judgment of the Trial Term affirmed, without costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.