In Waddey v. Waddey, 290 NY 251  the husband was required to pay $25 a week in maintenance. When the husband attempted to modify his maintenance based on the 1904 statute which allowed termination of maintenance upon remarriage, he failed because he could not prove that his former wife had remarried. However, through his attorney he succeeded in having section 1179 of the Civil Practice Act modified into what is now Domestic Relations Law § 248.
When the husband renewed his request to terminate maintenance after enactment of the statute, the trial court referred the matter to a referee, who authored an opinion that the wife's conduct was tantamount to "holding herself out as the wife of another."
The Supreme Court affirmed the referee's report, without elaboration, and the Appellate Division affirmed. The Court of Appeals reversed, holding that the statute could not be applied retroactively. The Court acknowledged that Civil Practice Act § 1172-c (Domestic Relations Law § 248) was designed to terminate maintenance only if the former spouse failed a "character" test. The Court noted that "the Legislature determine[d] that public policy required a ban on further alimony payments provided in a final decree of divorce granted to the wife for the wife's failure otherwise to live, subsequent to the divorce, in her character of former wife." (290 NY at 256.)
Importantly, when read in the light of the prior statutes, the Court of Appeals suggested in Waddey v. Waddey that Civil Practice Act § 1172-c must be read to mean that the "holding out" was some amount of proof less than what was required to establish a common-law marriage.
The "holding out" in Civil Practice Act § 1172-c required only proof that the spouse was no longer living in the "character of a former wife."
The standard of proof, in the original Court of Appeals analysis of the statute, was an "objective" standard, a community based perception that the ex-spouse was now acting--projecting to the public--as if she was no longer dependent on her former spouse for support. Judge Desmond's dissent discusses the broader question of the legislative intention in Domestic Relations Law § 248:
"Alimony is not a property settlement or a finally arrived at division between husband and wife of the former's income. It is a device for enforcing our public policy that an innocent wife's sustenance by her guilty husband should be continued after the divorce. But it would be a faulty public policy which would enforce the husband's public duty of support and not the correlated public duty of the wife. The Legislature, by the statute we are examining, has ordained that the wife's right to continued support from her husband after divorce, shall be forfeited by such misconduct as here appears." (Waddey v. Waddey, 290 NY at 258 [Desmond J., dissenting].)