October 28, 1952.
Present — Peck, P.J., Dore, Cohn, Callahan and Breitel, JJ.;
Determination of the Appellate Term reversed and the order of the Municipal Court modified so as to strike therefrom the provision for the dismissal of the complaint, and a trial of the issues is directed. Whether the parties intended that the Nevada decree and its subsequent modifications should operate as a merger of the separation agreement and bar its survival of the decree is an issue of fact which should only be determined upon a trial. ( Hettich v. Hettich, 304 N.Y. 8, 14, 15; Goldman v. Goldman, 282 N.Y. 296, 305; Schmelzel v. Schmelzel, 287 N.Y. 21, 26.)
The record does not indicate any intention of the parties to merge the separation agreement in the Nevada divorce decree and to deprive it of further force. The mere fact of incorporation of the agreement into the decree does not show intention to merge ( Goldman v. Goldman, 282 N.Y. 296). Nor is there any showing by defendant that the Nevada law on the subject of merger and survival of the separation agreement as a contract is any different from New York law. In that state of the record, we presume the law is the same, and following the decisions in Goldman v. Goldman ( supra); Schmelzel v. Schmelzel ( 287 N.Y. 21), and Hettich v. Hettich ( 304 N.Y. 8) the order appealed from should be affirmed. Settle order on notice. [See 281 App. Div. 658.]