Opinion
April, 1930.
Order granting plaintiff's motion for alimony and counsel fee reversed upon the law and the facts, without costs, and motion denied, without costs. The continued existence of the separation agreement bars the granting of this motion. It does not satisfactorily appear in this record that the defendant breached the agreement or that the agreement did not subsist at the time of the commencement of this action. ( Rosenblatt v. Rosenblatt, 209 App. Div. 373; Drane v. Drane, 207 id. 217; Brody v. Brody, 190 id. 806; Benesch v. Benesch, 182 id. 221; Beebe v. Beebe, 174 id. 408; Johnson v. Johnson, 206 N.Y. 561; Winter v. Winter, 191 id. 462.) Lazansky, P.J., Young, Kapper, Carswell and Tompkins, JJ., concur.