Dumarest v. Dumarest , 208 A.D. 704 ( 1923 )

Judgment and order reversed upon the law and the facts, and complaint dismissed upon the law, without costs. We think the judgment in the second separation action, brought by the wife against the husband, constitutes a bar to the maintenance of the present action. We have examined the questions raised by appellant as to the rulings of the trial court with reference to proving the items of disbursements, and see no reason for interfering with the same. Kelly, P. J., Rich and Young, JJ., concur; Kelby, J., dissents upon the ground that the judgment in the second separation action is not res adjudicata as to the right to recover for the amount expended for the maintenance of the children; Manning, J., not voting.