213 A.D. 183 | N.Y. App. Div. | 1925
There is no brief in this case for respondent. She submits an affidavit that she has no means to employ a lawyer or print a brief, and also presents a memorandum used on an application for a stay in which she cites authorities to the effect that an appeal or other proceeding by a party who absents himself and refuses to submit to the order of the court will not be heard. The defendant has paid no alimony or counsel fee and it is said he remains without the State evading service of the order. This, however, will not prevent his being heard on appeal from an order which he contests as unfounded.
In that testimony it appeared that for a period of nine years or more the defendant was employed by one Portfolio & Co. as salesman, and that his income then was as high as $20,000, but that in November, 1924, the said Portfolio & Co. retired from business and the defendant, after attempting to get positions with
On this report of the referee, without any further evidence in the matter, the court at Special Term entered an order directing the defendant to pay alimony at the rate of $375 a month, counsel fee of $500 and costs and disbursements of the motion.
The court at Special Term must have adopted either the premise that the separation agreement was still in force or the premise that it was no longer existing. The appellant contends that in either event the court should not have granted alimony and counsel fee. Upon the theory that the court ignored the referee’s report, and held that the separation agreement was a valid existing agreement between the parties, there could be no provisions for alimony and counsel fee.
This was held in the case of Cain v. Cain (188 App. Div. 780), where the provision for alimony was struck out of a judgment for divorce by the Appellate Division because a separation agreement providing for alimony was still in force. The court said:
“ A contract was entered into by the parties after they had separated and before the action was brought, which provides for * * * support and maintenance, and it is contended that this precludes making any other or further provision therefor by judgment. * * *
“ I do not see how the alimony provision for the wife can be sustained. Such a contract is binding upon both parties, unless set aside or impeached, and that is so, though the marital relations between the parties are terminated by divorce (Galusha v. Galusha, 116 N. Y. 635; Greenfield v. Greenfield, 161 App. Div. 573; Benesch v. Benesch, 182 id. 221) and is not in violation of the Domestic Relations Law (Consol. Laws, chap. 14 [Laws of 1909, chap. 19], § 51). (Winter v. Winter, 191 N. Y. 462.)”
The judgment there was modified by striking out the provision for alimony for the support of the wife.
The doctrine of Galusha v. Galusha was reaffirmed as recently
Upon the theory that the court found the separation agreement in question had been breached by the defendant and was no longer binding, there could be no award of alimony and counsel fee, because the action on the part of the plaintiff in bringing suit thereon waived whatever breach there had been on the part of the defendant.
A breach of the separation agreement occurred when the defendant failed to pay the installment of alimony for" the month of December, 1924, which became due on the first day of that month. On or about December 5, 1924, the plaintiff commenced an action in the Municipal Court to recover $375 and interest pursuant to the terms of the separation agreement. By so doing the plaintiff elected to affirm the contract and lost the right to disaffirm until a new breach occurred on the part of the defendant.
“ Where a party takes legal steps to enforce a contract, this is a conclusive election not to rescind on account of anything then known to him.” (Conrow v. Little, 115 N. Y. 387.)
A new breach by the defendant could not have occurred until January 1, 1925, when the next installment was due. But on December 31, 1924, plaintiff obtained and served upon the attorney for the defendant an order to show cause why alimony and counsel fee should not be directed to be paid. Thus, although plaintiff had waived her right to disaffirm because of defendant’s breach and no new breach had yet occurred, plaintiff reversed her position and herself repudiated the agreement by asking the court for an award of alimony and counsel fee, which she could not do at law so long as the agreement of separation was in force, unrepudiated by the parties and not specifically set aside by the court, and which, under the very terms of the agreement, she could not ask for so long as the agreement was in force.
The order here was based upon a motion made by the plaintiff at a time when the plaintiff could point to no breach that she had not waived, and when because of her election to sue on the contract she had waived her right to ask for alimony. Therefore, no order for alimony and counsel fee based upon a motion made at that time could have been made.
Under the doctrine of Galusha v. Galusha (supra) and the other decisions following its announcement, no alimony or counsel fee could be granted to the plaintiff by order of the court while the separation agreement is still in force. If that doctrine were not applied in the present case the defendant would be subjected to a double liability.
The facts here are identical, and the only remedy the plaintiff had at the time of her application was on the separation agreement.
In Cain v. Cain (supra) the court held that a separation agreement was good after a divorce. The same was held in Van Ness v. Ransom (164 App. Div. 483; affd. sub nom. Parsons v. Macfarlane, 220 N. Y. 605). Under these rulings there is no question that the defendant would be subject to double liability if this order were allowed to stand.
We think that the plaintiff had no right to the order here and that the order should be reversed and the motion denied.
Clarke, P. J., Dowling, Finch and Martin, JJ., concur.
Order reversed and motion denied.