Opinion
September, 1930.
Present — Lazansky, P.J., Rich, Young, Scudder and Tompkins, JJ. Settle order on notice.
Judgment modified by reducing the amount thereof to the sum of $300, the amount demanded under plaintiff's second cause of action, with interest and costs, and as so modified unanimously affirmed, without costs. The separation agreement entered into between the parties on October 28, 1925, was breached by the husband, the defendant, by reason of his non-payment of $30 per week, beginning December 12, 1925. When he brought an action on December 17, 1925, against the plaintiff wife for a divorce and she counterclaimed for a separation, setting up the separation agreement and its breach by the defendant husband, she thereby rescinded such separation agreement and cannot now sue for installments claimed thereunder from December 12, 1925, to July 17, 1926. Findings of fact and conclusions of law are not res adjudicata unless followed by a judgment based thereon, which is relevant to the issues, and the defendant husband is not bound by a provision in the judgment declaring the separation agreement which had been entered into October 28, 1925, terminated at the date of the judgment. It was terminated by the service by the plaintiff herein of an answer in the divorce action setting up a counterclaim for a separation. Findings of fact inconsistent herewith and the conclusion of law are reversed and new findings and a new conclusion will be made.