NEWPORT v. NEWPORT

FRANKENTHALER, J.

Defendant cannot avail himself of the existence of the separation agreement which he has concededly failed to perform. Plaintiff's institution of this action for a separation in which she asked for and obtained temporary alimony amounted to a repudiation of the agreement and an election to rescind the same. (See Landes v. Landes, 172 A.D. 758; Randolph v. Field, 165 id. 279.)

Judgment will be for plaintiff, with twenty-five dollars per week alimony. Defendant's motions to dismiss the complaint, upon which decision was reserved, are denied, with exceptions. Submit findings.