As set forth in Part I.A., supra, it is a general rule that a party must elect between two remedies only when the remedies available to a party are inconsistent or mutually exclusive. See Rennie v. Rennie, 261 A.D. 587, 26 N.Y.S.2d 690, 692 (1st Dept. 1941), rev'd on other grounds, 287 N.Y. 86, 38 N.E.2d 143 (1941). The doctrine has "no application to the pursuit of remedies against parties concurrently liable, short of payment and satisfaction."
This did not deprive the court of the power to give the wife the additional rights and remedies that a decree might afford her. (See Kyff v. Kyff, 286 N.Y. 71. ) The right to resort to a court of law to enforce a separation agreement, and the remedies to enforce alimony in a matrimonial action may at times be concurrent. ( Rennie v. Rennie, 261 App. Div. 587.) The only limitation contained in section 1170 is that any provision for support in a decree must be one which the court finds just and equitable. While the courts have disapproved the practice of incorporating all of the provisions of a separation agreement in a decree ( Kunker v. Kunker, 230 App. Div. 641; Schnitzer v. Buerger, 237 id. 622), no such request was made here. Plaintiff merely asked that the provision as to maintenance be so incorporated.