The plaintiff, after a breach of the separation agreement" by the non-payment of certain weekly amounts provided therein to be paid by the defendant, elected to bring an action in the Supreme Court for a separation and there moved for alimony and counsel fee. The mere fact that the Supreme Court denied the plaintiff’s application for alimony, etc., at that stage of the action does not entitle the plaintiff to sue for the entire unpaid weekly amounts provided to be paid under the separation agreement. The bringing of the Supreme Court action for a separation and the motion therein for alimony and counsel fees was a disavowal by the plaintiff of the separation agreement and a rescission thereof. Therefore, all that the plaintiff can recover in this action on the separation agreement is the unpaid amounts due under the separation agreement for the months of May and June, 1926.
Judgment modified by reducing it to the amount of $120, with costs, and as thus modified affirmed, without costs of appeal to either party.
All concur; present, Delehanty, Lydon and Crain, JJ.