(dissenting). The question involved herein is one of statutory construction.
Section 1171-b of the Civil Practice Act permits an application to be made to the court to enter judgment on an order for *514temporary alimony. Prior to the adoption of this section,, the remedy of enforcing payments of alimony by entry of judgment for unpaid installments and issuance of execution thereon was limited to alimony provided by final decree.
It was well settled before the adoption of the new section that a wife could not obtain any relief on an award made pendente lite unless she enforced her remedy before final disposition of the action. All intermediate, preliminary and provisional orders necessarily fell when the action ceased to exist. (Matter of Thrall, 12 App. Div. 235, affd. on opinion below 153 N. Y. 644; Hayes v. Hayes, 150 App. Div. 842, affd. 208 N. Y. 600; DiBenedetto v. DiBenedetto, 248 App. Div. 604.)
The authority to award temporary alimony and to provide for the means of its enforcement rests entirely on statutory provisions which are not to be extended by implication. (Beadleston v. Beadleston, 103 N. Y. 402; Doncourt v. Doncourt, 245 App. Div. 91, affd. 275 N. Y. 470; Mittman v. Mittman, 263 App. Div. 384.)
It is true that the new section (§ 1171-b) imposes no express limitation as to when an application to enter judgment based upon an order for temporary alimony must be made. This does not necessarily mean that it was the legislative intent that such a judgment might be applied for, based upon a temporary order, after the termination of the action. It would be more consistent with the basic principle of construction, to wit: that provisions concerning the means to enforce temporary alimony are not to be extended by implication, to construe the new section to mean that the termination of an action by final judgment ended the right of the wife to enforce- any intermediate order. (Matter of Thrall, supra.)
While I agree with the view expressed by the majority concerning the extent to which the new remedy is discretionary, I think that the new section requires that, insofar as temporary orders are concerned, enforcement by judgment must be availed of before the termination of the action. The present application was not timely.
The order should be affirmed.
Martin, P. J., and G-lennon, J., concur with Untermyer, J.; Dore and Callahan, JJ., dissent in separate opinions.
Order so far as appealed from, modified as indicated in opinion of Untermyer, J., and as so modified affirmed, with twenty dollars costs and disbursements to the appellant. Settle order on notice.