Opinion
January 29, 1937.
Appeal from Supreme Court of New York County.
Robert Kopple, for the appellant.
Nathan Stieglitz of counsel [ Harry H. Oshrin, attorney], for the respondent.
Present — MARTIN, P.J., McAVOY, O'MALLEY, GLENNON and UNTERMYER, JJ.
The provisions of paragraph fourteenth of the agreement between the parties did not preclude the plaintiff from instituting proceedings in the Domestic Relations Court charging the defendant with disorderly conduct in failing to provide for the maintenance of herself and her children, and resulting in an order of that court requiring the defendant to contribute to their support. Paragraph fourteenth was intended, we think, to extend rather than to limit the wife's rights, and, since it contains no express prohibition against the maintenance of proceedings of a criminal nature, none should be implied. It is not necessary to decide whether payments made by the defendant under the order of the Domestic Relations Court might not be asserted as a partial defense to the action, in view of the fact that the proceedings are alleged as a complete defense. (Civ. Prac. Act, § 262.)
The order should be modified by striking out the affirmative defense contained in the defendant's answer, and as so modified affirmed, without costs, with leave to the defendant to serve an amended answer within ten days after service of order with notice of entry thereof.
Order unanimously modified by striking out the affirmative defense contained in the defendant's answer, and as so modified affirmed, without costs, with leave to the defendant to serve an amended answer within ten days after service of order.