Opinion
April, 1932.
Order in so far as it denies defendant's motion to strike a provision from the decree of divorce reversed on the law and the facts, without costs, and the motion granted, without costs. Section 1159 of the Civil Practice Act is mandatory and required the granting of the motion herein upon the conceded fact that the plaintiff had remarried. The agreement incorporated in the final decree concerned itself primarily, if not entirely, with support and maintenance, the provisions for which were in lieu of alimony and were incorporated as such in the decree. This disposition, however, should be without prejudice to the plaintiff's invoking any rights with respect to property that may inhere in her by reason of the agreement of December 12, 1925, and particularly with reference to the Roslyn property. ( Kunker v. Kunker, 230 App. Div. 641, 645.) Lazansky, P.J., Young, Kapper, Hagarty and Carswell, JJ., concur.