concurrence">Does, J.

(concurring in part). With regard to the order which adjudged defendant guilty of contempt, I concur in the reasoning as well as the result reached in the opinion of Mr. Justice Cohít.

With regard to the order which denied defendant’s cross motion to modify the judgment of separation by striking therefrom the alimony and custody provisions, I agree with the reasoning and the result reached by Mr. Justice Conn in his opinion concerning the custody of the children and I agree with the result reached in eliminating provisions for alimony for the wife.

Plaintiff wife herein voluntarily went to Nevada to procure a divorce, leaving her children here in her New York domicile. In that action defendant was not personally served and did not appear by attorney or otherwise. With regard to her claim for alimony under the New York separation decree, I think it is necessary only to hold that plaintiff wife under the facts *356disclosed is estopped by her own action from claiming thereunder the alimony provisions in her favor. Although defendant, apparently for purposes of strategy in the litigation between him and his wife, has not as yet attacked the Nevada decree, I think it is unnecessary at this time for this court to hold that such decree validly severed the marital relationship.

In Estin v. Estin (296 N. Y. 308, affd. 334 U. S. 541) after the wife had obtained a separation judgment in New York, the husband on constructive service and without the wife’s appearance obtained a Nevada divorce decree. In holding that the support provisions of the New York separation judgment survived, the courts were protecting an innocent wife against the action of a guilty husband who by the maneuver of a Nevada divorce without service on the wife was attempting, contrary to our public policy, to frustrate the New York separation decree validly obtained here by the wife. In this case, however, it is the wife herself who has sought and obtained a Nevada decree without obtaining jurisdiction of the husband and without any basis in our public policy. It is anomalous to hold that for the purpose of the Nevada decree the wife was a domiciliary of that foreign State and simultaneously to hold that for the purpose of procuring for herself the benefits of the provisions of the New York separation decree, she is a domiciliary of this State. So far as alimony under the New York decree is concerned, I think we should hold that the wife is estopped from asserting in this State her right to enjoy the benefits flowing from the New York decree.

Accordingly, I concur in the opinion of Mr. Justice Cohit to the extent that it reverses in all respects the order granting plaintiff’s motion to punish defendant for contempt and affirms that part of the said order denying defendant’s motion regarding custody; and I concur in the result reached in that opinion eliminating from the New York separation decree all provisions for alimony for the wife.

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