The judgment should be unanimously reversed upon the law and the facts and new trial granted, with $30 costs to plaintiff to abide the event. Appeal from “directed verdict ’ ’ dismissed; no appeal lies therefrom. The evidence presented a question of fact which should have been submitted to the jury as to whether, under all of the circumstances here present, it was plaintiff’s intention to waive her rights under the separation agreement by the commencement of the action *442for separation (Hettich v. Hettich, 304 N. Y. 8; Schmelzel v. Schmelzel, 287 N. Y. 21; Galusha v. Galusha, 116 N. Y. 635; Goldman v. Goldman, 282 N. Y. 296). It was therefore error to direct a verdict in favor of defendant.'
Concur- — - Pette, Hast and Brown, JJ.
Judgment reversed, etc.