First Department, June, 1908. [Vol. 126. An action for a separation is regulated by sections 1762 to 1767, inclusive, of the Code of Civil Procedure. Section 1762 provides that in certain cases specified an action may be maintained by the husband or wife against the other party to the marriage to procure a judginent separating the parties from bed and board forever or for a limited period. Section 1766 provides that where the action is brought by the wife the court may, in its final judgment of separation, give such directions as the nature and circumstances of the case require. It may compel the defendant to provide suitably for the education and maintenance of the children of the marriage and for the support of the plaintiff as justice requires, having regard to the circumstances of the respective parties. Section 1770 provides that where an action is brought by either the husband or wife for a divorce or separation, a cause of action against the plaintiff and in favor of the defendant for either a divorce or separation may be interposed in connection with a denial of the material allegations of the complaint as a counterclaim. Section 1771 provides that where an action is brought by either husband or wife for a divorce or a separation the court must give, either in the final judgment or by one or more orders made from time to time before final judgment, such directions as justice requires for the custody, care, education and maintenance of the children of the marriage and, where the action is brought by the wife, for the support of the plaintiff. There can be no question but that the rights and obligations of the parties in relation to the marriage were determined by the judg ment which separated the defendant from the plaintiff as to bed and board forever. Such a judgment of separation is entirely inconsistent with the continuance of an obligation of the husband to support the wife and ends the obligation for such support assumed by the husband upon the marriage. While the marriage was not annulled, the mutual obligations of the parties to the marriage, on the part of the wife to live with her husband, and correspondingly on the part of the husband to live with or support his wife were determined. The parties were legally separated, and the reciprocal obligations of the husband and wife of consort and support were terminated. There was, therefore, a valid adjudication that thereafter the wife was under no obligation to live with the husband, App. Div.] First Department, June, 1908. and the husband was under no further obligation to support his wife. So long as that judgment remained in full force and effect, the court could not in any subsequent action enforce an obligation to support which had been determined by the adjudication between. the parties. The subsequent commission of adultery by the husband, while giving to the wife a right to a judgment dissolving the marriage, did not in any way revive the obligation of the husband to support the wife either before or after the judgment. In Galusha v. Galusha (116 N. Y. 642) the parties had by articles of separation made provision for the support of the wife, in consideration of which she forever released and discharged the defendant from any right of support from him. Subsequently the wife commenced an action for an absolute divorce upon the ground of adultery and sought to recover alimony; but it was held that the separation agreement was a bar to the recovery of any alimony so long as that agreement remained in full force and effect. In determining that question the court said: "Because of the marriage relation the husband was bound to support his wife. This legal obligation constituted the basis for a settlement of their affairs and the making of an agreement by which it should be definitely determined how much he should be obliged to contribute and she entitled to receive from him for her support. After its making, it was not in the power of either party, acting alone and against the will of the other, to do an act which would destroy or affect that contract. The act of adultery did not of itself subvert the marriage contract. * The wrongful act of the husband then did not * of itself avoid even the marriage contract. Much less was it potent to affect a contract founded, not upon a promise to faithfully observe the marriage vows, but instead upon a legal obligation to support and maintain the wife. Neither did the act of the wife in availing herself of the husband's wrong to free herself from matrimonial bonds effect* the separation agreement." The question here involved was presented to the Special Term of the New York Superior Court in McDonough v. McDonough (26 How. Pr. 193), where it was held that the prior judgment which awarded a separation and determined the amount of support for which the husband * Sic. First Department, June, 1908. [Vol. 126. was responsible was conclusive upon the parties, and that after that judgment had been complied with no further claim could be made against a husband for alimony in a subsequent action. The same principle was applied by Mr. Justice HOUGHTON in Taylor v. Taylor (32 Misc. Rep. 312). (See, also, Waring v. Waring, 100 N. Y. 570.) And this is the rule in England. (Holt v. Holt, 28 L. J. Rep. N. S. [Mat. Cas.] 12.) It is insisted by the defendant that, as there was no provision for alimony in the interlocutory judgment, the court had no power to insert such a provision in the final judgment. It is not necessary to determine that question, but we think it better practice that an interlocutory judgment should contain a provision for alimony, and all the questions between the parties shall be then determined so that the final judgment can simply make the interlocutory judgment final. The judgment appealed from must, therefore, be modified by striking out the provision as to alimony and, as modified, affirmed. LAUGHLIN, CLARKE, HOUGHTON and Scorr, JJ., concurred. Judgment modified as directed in opinion, and as modified, affirmed. Settle order on notice. EVA K. CONLON, Appellant, v. MARY ANN KELLY and Others, Respondents. First Department, June 5, 1908. Motion and order - recitals use of judgment roll on motion - appeal. Where upon the argument of a motion judgment rolls are referred to as having a material bearing upon the question to be decided, the court may use the rolls in determining the issue and recite them in the order as papers upon which his determination was based, even though they were not mentioned in the moving papers. The Appellate Division will not review the action of the court below in deter mining the proper recitals of an order, unless the facts are undisputed. On a motion to carry a judgment into effect, the judgment itself need not be served as part of the moving papers. MCLAUGHLIN and HOUGHTON, JJ., dissented. App. Div.] First Department, June, 1908. APPEAL by the plaintiff, Eva K. Conlon, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of April, 1908, denying the plaintiff's motion to resettle an order entered in said clerk's office on the 3d day of March, 1908, by striking from the recitals in said order reference to two affidavits and two judgment rolls as being papers upon which the motion was decided. J. H. Marsh, for the appellant. William Mason Smith, for the respondent Buttenwieser. INGRAHAM, J.: Upon an affidavit of one of the plaintiff's attorneys herein which alleged that this was a special proceeding commenced by the service on the plaintiff herein, Eva K. Conlon, of a petition and an order to show cause; that Eva K. Conlon interposed her answer to the petition, and the matter duly came on for argument at the Special Term; that on or about March 3, 1908, a final order was duly made and entered, from which order the defendant therein has appealed; that upon the argument of the motion, the court gave to the petitioner permission to file affidavits in reply to the answer and directed that the same be served on the attorneys for the defendant Conlon, and the affidavit of one Fox was accordingly filed with the court and a copy thereof served on the attorneys; and that no other affidavits or papers were served upon the said attorneys; that there was contained in said order determining the proceedings a recital of "affidavits, judgment rolls and other papers which were not mentioned in the moving papers and the defendant Eva K. Conlon, and her attorneys had no notice that they were to be used upon this motion, and so far as deponent or his said firm knows were never before the court;" that one of these judgment rolls consisted of seventy printed pages and the other of more than one hundred and twenty folios; that the petition prayed that the receiver pay over to the petitioner the rents and profits collected from certain real property, and that the order APP. DIV.-VOL. CXXVI. 40 First Department, June, 1908. [Vol. 126. entered in this proceeding so directs, and discharges the receiver; and an application was made to resettle the order. There was submitted in answer to this motion an affidavit of one of the defendants' attorneys herein which stated that he argued the motion and that the order was entered after a notice of settlement; that the notice to resettle the order was not made until after the plaintiff herein had appealed from the order, and that to the best of the deponent's recollection the judgment rolls or their contents were referred to by the deponent during the argument of the motion, and also by other counsel heard on the argument; that one of the affidavits mentioned was expressly referred to in the petition of Joseph L. Buttenwieser; and that the other affidavit was merely a statement by the receiver as to the amount of money in his hands, and was furnished by the direction of the court, so that that amount could be ascertained. Upon these papers the court, presided over by the same justice who heard the motion and made the order, denied the motion to resettle the order. The appellant has not seen fit to print either the motion papers upon which the order sought to be resettled was entered, or the order which she seeks to have resettled; and we are forced to rely upon incidental mention of the nature of the proceeding and the form of the order that was entered contained in the affidavit of the moving party. It follows that it is quite impossible for the court to determine intelligently from this record whether these judgment rolls were necessary for the court's decision of the application before it. It, however, appears that the question to be determined by the court was to whom the money in the hands of the receiver should be paid, and that one of these judgment rolls was the judgment in this action, although that fact is not asserted in any of the affidavits, and that the other judgment roll was a judg ment to which this defendant was a party. Whether the plaintiff was a party to that action does not appear; nor does it appear whether the receiver was appointed in this action, or under what circumstances he became possessed of the moneys which were in controversy. These judgment rolls were on file with the clerk of the court, in the court house in which the motion was heard. If the receiver had been appointed in these actions and held the fund subject to these judgments, it is apparent that they should be con |