I concur in the reason assigned by Mr. Justice Latjghlin for a reversal of the judgment, but am of opinion that the complaint should be dismissed. The provision for the support and maintenance of the infant plaintiff was embodied in the decree for divorce. The agreement between the parents thereby became merged in the judgment in the action of Kendall v. Kendall, to which the infant plaintiff was not a party. This action is in reality brought upon a foreign judgment of divorce to collect unpaid alimony, and cannot be maintained by the child, for, while such portion as the mother should disburse for the purpose of the child’s support and education was for the child’s benefit, the money was payable, by the terms of the decree, to the mother, and she alone can enforce it.
Judgment reversed and demurrer sustained, without costs, with leave to plaintiff to join as plaintiff or bring in as defendant her mother, Elizabeth T. Davis, and to serve an amended complaint if so advised.