Opinion
November 25, 1942.
Appeal from Supreme Court.
Present — Hill, P.J., Crapser, Bliss, Heffernan and Foster, JJ.
The parties formerly were husband and wife. The marriage was terminated by a decree of divorce granted to the wife in the State of Nevada. The decree made provision for her support. Prior to the decree of divorce, and on September 10, 1941, the parties entered into an agreement of separation which provided that the husband should make certain payments to the wife for her support and the support of a daughter of the marriage. Plaintiff brought this action for the specific performance of that contract. Defendant in his answer sets forth an affirmative defense to the effect that the divorce decree in Nevada makes the provisions of the separation agreement unenforcible. This is not a case for summary judgment. The issue should be tried. Order unanimously affirmed with twenty-five dollars costs and disbursements.