Kahler v. Searl

Fawcett, J.

Motion to strike from a judgment of divorce the alimony provision nunc pro tunc as of the date of the wife’s remarriage. Section 1159 of the Civil Practice Act has been construed in Kirkbride v. Van Note (275 N. Y. 244) as permitting the personal representative of the deceased husband to make the motion, but the present, case presents features not present in that case. Here the alimony provision was not only for the wife’s support but the “ support and maintenance of the issue of the marriage ” and the issue did not become of age until nearly a year after the judgment, and for such sum as plaintiff expended during that time for the child’s support, on the husband’s failure, she has a right of recovery. (Heidelberger v. Heidelberger, 196 App. Div. 626.) Furthermore, the second husband died several years ago and thereby the wife was removed from the operation of the theory of the enactment, which is that a divorced husband ought not to pay alimony for a period “ during which his former wife is married to another.” (Kirkbride v. Van Note, supra, p. 249; Sleicher v. Sleicher, 251 N. Y. 366, 371.)

Motion is denied.