(concurring in result). The Supreme Court has jurisdiction to make an order punishing as for a contempt in respect of accrued unpaid temporary alimony in a proceeding instituted and submitted for decision before the entry of judgment in the main action. (Judiciary Law, § 760; Civ. Prac. Act, §§ 1172, 1171-b; Barbieri v. Barbieri, 250 App. Div. 731; Treherne-Thomas v. Treherne-Thomas, 267 App. Div. 509, 511, 513; Maser v. Maser, 276 App. Div. 733, 737, affd. 301 N. Y. 774; Matter of Cost [Benetos], 277 App. Div. 1049, appeal dismissed, 303 N. Y. 862.)
This view is no longer open to serious challenge under Maser v. Maser (276 App. Div. 733, 737, affd. 301 N. Y. 774, 775, supra).
Any other view would put a premium on the flouting of the court and would be contrary to settled New York doctrine *232requiring orders to be obeyed (Ketchum v. Edwards, 153 N. Y. 534, 538, 539; Judiciary Law, § 760) as well as Federal doctrine of a kindred character (Howat v. Kansas, 258 U. S. 181, 188, 190; Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 450).
To the extent that accrued vested property rights arising under an order for temporary alimony is enforcible by one method, as in Maser v. Mazer {supra), it is enforcible by all or none of the other available methods.
The order appealed from, as a matter of substance, necessarily gives effect to the temporary alimony order as of the date the motion therefor was made. It is not strictly necessary under settled authority to enter the order nunc pro tunc, but no harm comes from so doing. This merely makes the form conform more clearly to the substance.
The fact that the judgment, when entered, was adverse to the wife has no effect upon the enforcibility of the intermediate order under the foregoing circumstances. The intermediate order merges in the judgment in its prospective effect, but property rights previously accrued and vested thereunder in the wife are enforcible. The test as to the propriety of an intermediate order requiring the payment of alimony pendente lite is as to whether or not the moving papers establish, prima facie, a reasonable prospect of success. The fact that on a trial such success does not eventuate is of no relevance or importance. The test on that occasion is whether the evidence adduced to support or controvert the cause of action is or is not credited or adequate. If the temporary alimony had been paid it could not be recovered, because the wife is entitled to some form of support generally and, under the order pendente lite, until it be adjudicated that the husband is not at fault. Assuming, without deciding, that the intermediate order was erroneously made, it must be obeyed and it is enforcible unless and until its enforcement is stayed. Here there was no stay, and the property rights which accrued prior to trial vested in the wife and are the proper subject of enforcement. Certainly, if the proceeding to enforce be instituted before the entry of judgment, the wife may not be deprived of those vested rights by delay in the decision of the application for enforcement until after the entry of judgment. (Tuomy v. Dunn, 77 N. Y. 515, 517.) We are not concerned with whether the accrued alimony could be enforced if the proceeding in contempt, or otherwise, had not been instituted until after the entry of judgment. In Maser v. Maser {supra), the Court of Appeals stated a principle in answer to *233a question as to the effect of the entry of judgment on intermediate orders and the right of enforcement by contempt or entry of money judgment thereon and stated that such orders did not fall upon the entry of judgment relating to the marriage status. In that case the proceeding to enforce one intermediate order on one phase was begun ten years after the entry of judgment. That principle is controlling here and is effective regardless of whether the wife did or did not prevail on the trial. (Treherne-Thomas v. Treherne-Thomas, 267 App. Div. 509, 511, 513, supra.)