Opinion
May 3, 1965
In an action for a judicial separation (first cause of action), and to recover arrears in support payments owing under a separation agreement (second cause of action), the defendant appeals: (1) from an order of the Supreme Court, Queens County, entered March 19, 1964 in Nassau County, which granted plaintiff's motion for summary judgment on her second cause of action; and (2) from the judgment entered March 27, 1964 in Nassau County pursuant to said order. Judgment and order reversed, without costs, and plaintiff's motion for summary judgment denied. In our opinion, triable issues of fact are presented as to: (a) defendant's claim of cohabitation and reconciliation (cf. Zimtbaum v. Zimtbaum, 246 App. Div. 778, affd. 272 N.Y. 416; Peer v. Peer, 17 Misc.2d 380); and (b) whether defendant is entitled to credit for payments for a period of 28 1/2 weeks on account of his alleged assigment to plaintiff of his interest in an insurance policy (cf. Popular Home Lbr. Co. v. Roberts, 9 A.D.2d 593). Beldock, P.J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.