I am for affirmance of this order, upon the ground that, whether or not the agreement between the parties was valid, the complaint shows that it has been broken by the defendant, and the plaintiff has now brought an action in derogation of it, which is equivalent to a repudiation of it on her part. That leaves open the entire question of her right to a separation and to support. What she may have received under the separation agreement is a matter to be considered when the court comes to make its decree awarding alimony.
The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.
McLaughlin and Laughlin, JJ., concurred; Dowling, J., dissented.
Clarke, P. J.:Whatever effect the separation agreement may have upon the question of alimony, it does not oust the court of jurisdiction to entertain a separation action. I, therefore, concur in the affirmance of this order.
Laughlin, J., concurred.