Zukowsky v. Zukowsky

Order affirmed, with ten dollars costs and disbursements. There has been no motion to dismiss the complaint or for an order of discontinuance, and as the plaintiff claims that an agreement was made that the reconciliation was to be temporary, with all rights in the action surviving, she has the right to test her legal theory that there has been no abandonment or abatement of the action. (Smith v. Smith, 35 Hun, 378; affd., 99 N. Y. 639; Tackaberry v. Tackaberry, 101 Mich. 102; Davison v. Davison, 182 Iowa, 1116.) On this subject we express no opinion. Until the question, not here directly presented, as to her right to prosecute the action further has been determined, she is entitled to counsel fees. Lazansky, P. J., Young, Kapper, Seudder and Davis, JJ., concur.