I concur in the result which relegates plaintiff to a plenary suit. However, I disagree with the majority of the court in the obiter dictum that Special Term improvidently exercised its discretion in granting a j?rdgment for arrears in support payments for the children, if the application be deemed to have been properly made pursuant to section 244 of the Domestic Relations Law. Since the entry of such a judgment would, under section 244, be discretionary, I would not relieve the husband from the obligation to pay, even though the children are with their father, because the record demonstrates that such physical custody violated the mother’s legal right to custody and was in open defiance of several orders of the Supreme Court. Courts should not, indirectly or impliedly, sanction disobedience to their orders. The effect of denying the wife a judgment for arrears would be to reward the husband for his contumacious conduct. A proper exercise of discretion under section 244 of the Domestic Relations Law requires that considerable weight be given to the inequitable conduct of defendant. Consequently, had this court reached the merits of the application, I would have affirmed Special Term in its conclusion that the husband’s wrongful custody of the children in violation of orders of the Supreme Court warranted an exercise of discretion in favor of the wife.