Landes v. Landes , 159 N.Y.S. 230 ( 1916 )

Dowling, J. (dissenting):

I dissent upon the ground that there was a valid outstanding agreement of separation between the parties, under which the plaintiff had received and still retains property belonging to the defendant; that said agreement was never canceled or repudiated by the defendant, but he simply failed to make payments thereunder for a period of time, and that plaintiff is in no position to claim that the agreement can be repudiated by her until she has tendered back the property received by her thereunder. With such a valid outstanding separation agreement between the parties, there can be no action brought for a separation. (Randolph v. Field, 165 App. Div. 282.)

Order affirmed, with ten dollars costs and disbursements.