First Department, April, 1921. [Vol. 196 respect to the support of the plaintiff or the children are in substance the same as the provisions of section 1771 of the Code of Civil Procedure, as such section existed in 1899, which were construed by the Supreme Court of the United States in Sistare v. Sistare (218 U. S. 1), as not reserving to the court the power to modify a decree with respect to accrued alimony; and in that case it was held that an action might be maintained in a sister State on such a decree for the recovery of accrued alimony, and that the full faith and credit clause of the Federal Constitution (Art. 4, § 1) was applicable thereto and rendered it the duty of the court of the sister State to enforce payment. The authority of courts over divorce actions and to award alimony and support for children is not inherent but is derived from statutory law (Lynde v. Lynde, 41 App. Div. 280; affd., 162 N. Y. 405; 181 U. S. 183), and, therefore, a divorce decree, such as the Nevada decree, reserving to the court authority on application on due notice to modify the provisions with respect to alimony and the support of the children, should not be construed as reserving to the court greater authority than would be so reserved by a statute to the same effect; since, as was held in Sistare v. Sistare (supra), a statute to that effect should be construed as authorizing a modification with respect to payments required to be made after the application to the court and not as authorizing a change with respect to payments which have theretofore accrued such a decree should be likewise construed as final with respect to alimony accrued thereunder before modification. There was no matrimonial domicile of these parties in Nevada. The plaintiff evidently took up a residence there solely for the purpose of obtaining the divorce and it is to be inferred that the defendant consented thereto for he voluntarily appeared in the action. If it were held that the divorce decree with respect to alimony and the support of the children was so inconclusive that the Nevada court could modify it with respect to accrued payments, the courts of another State could afford the plaintiff no relief even though the defendant wholly failed to perform his obligations thereunder (Lynde v. Lynde, supra; Sistare v. Sistare, supra), and since the defendant was not within the jurisdiction of the Nevada court, and presumably, as he never resided there, First Department, April, 1921. App. Div. 472] had no property in that State, the decree in so far as it provided for alimony and the support of the children would, in effect, be a nullity. This is a cogent argument in support of so construing the decree, assuming that the separation agreement was merged therein, that the reserved authority of the court to modify the alimony and provisions for the support of the children could apply only to the payments thereafter accruing, so that with respect to accrued payments the decree should be deemed to establish an indebtedness enforcible against the defendant in any jurisdiction; and it is also a forceful argument that it was not intended that the separation agreement should be deemed merged in the divorce decree. As held in Sistare v. Sistare (supra), it was assumed in Lynde v. Lynde (supra) that the New Jersey court which granted the divorce had reserved full control over the decree with respect to payments which had accrued thereunder as well as those to fall due after an application should be made to the court for a modification of the provisions of the decree awarding alimony. Neither the statutes of New Jersey nor the provisions of the decree are quoted or construed in any of the opinions and, therefore, in Sistare v. Sistare (supra) the court held that the theory of the decision in Lynde v. Lynde (supra) was right, but the court did not consider the facts or hold that they warranted the assumption that the New Jersey court had lawfully reserved control over the provisions of the decree with respect to accrued alimony. I am of opinion that Sistare v. Sistare (supra) must be deemed to have overruled any and all prior decisions tending. to support the view that the courts of a sister State should decline jurisdiction to aid in the enforcement of a decree to the effect of the Nevada decree, by awarding a judgment against a husband for failing to make payments which, as here, had accrued under the decree and from payment of which he had not been relieved by the court which made the decree. I am of opinion that we should follow Sistare v. Sistare (supra) and proceed upon the assumption that the reserved authority does not relate to payments which have accrued. On that theory it would, I think, be immaterial whether there was uncontroverted evidence of a violation App. Div.- VOL. CXCVI 31 First Department, April, 1921. [Vol. 196 of the separation agreement by the plaintiff for defendant did not apply to the Nevada court or obtain an order relieving him from liability for these payments. The trial court, however, ruled that the separation agreement was not merged in the divorce decree and much may be said in support of that ruling. The plaintiff in the divorce action did not ask for alimony. She asked for the custody of the children and referred to the separation agreement as giving their custody to her and asked that it be made part of the decree, and while the entire agreement was made part of the decree, by reference, its terms are only stated in the decree in connection with the award of the custody of the children to her. The separation agreement contains provisions not appropriate to a decree of divorce. It provided for the husband and wife living separate and apart and that neither should molest the other or assert conjugal rights and provided that all payments should be made to the trustee. Such provisions would be inappropriate and unusual in a decree for absolute divorce. Moreover, the Nevada court, without the consent of the parties and issues duly presented and the presence of the trustee and adequate proof, could neither have annulled nor have modified the separation agreement nor have changed the obligations of the husband with respect to the support of his wife and children as provided in the separation agreement. (Galusha v. Galusha, 116 N. Y. 635; 138 id. 283; Johnson v. Johnson, 206 id. 561. See, also, Whitney v. Whitney Elevator & Warehouse Co., 180 Fed. Rep. 187.) The plaintiff could have consented that the agreement be merged in the decree or could have rested on her rights under it; and with respect to alimony and the support of the children, I think it was intended to continue the agreement as such without .merging it in the decree, in which it is not set forth, until a further application should be made to the court. The Nevada court by the decree did assume to reserve the right to modify the provisions of the agreement with respect to the support of the wife and children and possibly under that reservation it could have done so with respect to future payments, but not as to accrued payments (Sistare v. Sistare, supra), on proper proof, but I think it was meant to let those matters stand as provided in the separation App. Div. 472] First Department, April, 1921. agreement unless and until a further application should be made to the court for modification as to the future, and since none was made we are not concerned with any point relating to the reserved authority of that court as to payments to accrue in the future. If as claimed by appellant the separation agreement was merged in the decree the case involved only a computation of unpaid installments and interest; but I am of opinion that the judgment can be sustained on the theory on which the case was tried and submitted to the jury. The alleged violations of the separation agreement by the plaintiff were trivial. In so far as the evidence relates to her failure to render an account of purchases made for the youngest son with the monthly allowance of twelve dollars, it was waived by a failure to insist upon the rendition of the first of such accounts for nearly six months; and as soon as defendant complained an account was rendered which was retained by defendant. Another alleged violation of the separation agreement by the plaintiff relates to the provisions by which she agreed not to reside outside of the city of New York without the defendant's consent or the approval of the trustee while the youngest son should be living and dwelling with her and that the father should be at liberty to take the child on certain occasions. The uncontroverted evidence shows that at all the times in question plaintiff maintained a residence for herself and the boy in the city of New York and that they there resided. On two occasions, without obtaining the consent of the defendant or the approval of the trustee, she took the boy out of the city for a short time but did not change their residence. One of these trips was on Sunday, July 2, 1911, when she and the boy went to Providence, R. I., to visit her former teacher and remained until the fifth. This was over a week-end and the boy had been with his father on Saturday and he had made no request to see the boy on Sunday and she endeavored to notify the defendant at his apartment before going but was unable to get in communication with him. The other was to Seaside Park, N. J., for a visit to the boy's aunt who had invited them, where they remained three weeks. Plaintiff testified that the boy had been in the city all summer and was not accustomed to city life and the First Department, April, 1921. [Vol. 196 weather had been extremely hot; and she evidently was of opinion that the outing would be beneficial to him. With respect to this trip, before leaving, the boy wrote a letter to his father stating that they were going to visit the aunt. On each of these occasions, it appears by the testimony of the defendant that he was expecting to see the boy and these trips deprived him of the opportunity of so doing. On discovering that the plaintiff had taken the boy to Providence, defendant wrote the trustee protesting that this was a violation of the agreement and the plaintiff admitted that the letter was transmitted to her. On receiving the boy's letter, with respect to the contemplated visit to Seaside Park, he also wrote the trustee claiming that it was a violation of his rights under the agreement and that he would present the matter to his attorneys and that he had instructed them to take immediate action to protect his rights. This letter was likewise transmitted to the plaintiff but the date of its receipt by her is not shown. One week thereafter, and evidently while plaintiff and the boy were at Seaside Park, defendant wrote the letter of August 26, 1911, to the trustee stating that under the advice of his attorney he would make no further payment under the agreement. I am of opinion that in the circumstances the jury were warranted in finding that the defendant was unreasonable and did not act in good faith in attempting to repudiate the agreement on account of the plaintiff's having taken the boy on those two trips. There was evidently no intent to alienate the boy from his father and it was manifestly for the benefit of the boy's health to have the outing at that time at the seashore. The father in his desire to find a technical ground for repudiating the contract, might have refused his consent if it had been asked; but it is unthinkable that the trustee would not have approved. Mere failure of the plaintiff to obtain that approval certainly was insufficient as matter of law to warrant the defendant in repudiating his obligations under the contract; and I am of opinion that the finding of the jury that in the circumstances it did not constitute such a breach of the contract as relieved the defendant from his obligations thereunder, was fairly warranted, for this is not like an ordinary business contract and these were merely technical violations of the |