Opinion
November 22, 1940.
Present — Martin, P.J., O'Malley, Townley, Dore and Cohn, JJ.; Dore and Cohn, JJ. dissent and vote to reverse and grant the motion.
Order affirmed. The plaintiff's breach of the conditions of the judgment of divorce relieved the defendant from the obligation to make the payments provided for therein. We are further of the opinion that there has been an express waiver by the plaintiff of the alimony sought to be recovered herein and that the finding of the referee to the contrary is against the weight of the evidence.