¶1I am unable to concur with the majority of the court as to the constitutionality of section 1170-b of the Civil Practice Act. As I read the decision of the Supreme Court in Estin v. Estin (334 U. S. 541) it turned upon the existence of previously established property rights under a New York judgment. The court held that the Nevada decree did not wipe out the wife’s claim for alimony under the New York judgment. It does not follow that the State of the wife’s domicile may, subsequent to a valid divorce obtained by the husband in another State, create new alimony rights upon some theory of retaining a continuing and surviving legal or economic interest in the wife’s status or support.
¶2Also, I am unable to see how section 1170-b would be made applicable to cases where the divorce was granted in the State of New York. If it is not so applicable, it is discriminatory and violative of the constitutional provision respecting the equal protection of the law.
¶3*15I therefore dissent and vote to strike from the judgment those provisions which are bottomed upon section 1170-b of the Civil Practice Act.
¶4Bastow, Cox and Bergan, JJ., concur with Bbeitel, J.; Peck, P. J., dissents in opinion.
¶5Judgment affirmed, with costs. Settle order on notice.