(concurring):
I concur. I think, in the language of Judge Andrews in Davis v. Davis (supra), the language of section 1166 of the Code of Civil Procedure may be construed to apply to “ cases where the wife, although entitled to a decree of separation, should choose to waive her right thereto, insisting only on a provision for the maintenance of herself and her children.” (See Erkenbrach v. Erkenbrach, 96 N. Y. 456, 462.) In this case the wife has not shown herself entitled to a decree for separation.
Judgment reversed, without costs, and new trial granted.