206 A.D. 214 | N.Y. App. Div. | 1923
The complaint sets forth a cause of action to recover upon an agreement entered into between the defendant, the husband, and the plaintiff, his wife, whereby the defendant agreed to pay to the plaintiff the sum of $150 per month for her support and maintenance, and alleges that the defendant has failed to make the payments becoming due under said agreement between the 1st day of March, 1922, and the 1st day of June, 1922, and demands judgment for $450.
The answer sets up as a defense that on the 27th day of July, 1920, an action was pending between these parties in which the defendant herein was plaintiff and the plaintiff herein was defendant, wherein the plaintiff prayed for the annulment of the marriage;
The appellant claims that the plaintiff herein by her motion in the other action elected to terminate the agreement and that her election is final. In support of this he cites Henry v. Herrington (193 N. Y. 218); Georgi v. Texas Co. (225 id. 410); Whalen v. Stuart (194 id. 495) and Merry Realty Co. v. Shamokin & Hollis Real Estate Co. (230 id. 316). From the first case cited he quotes (p. 221): “ This doctrine of the election of inconsistent remedies consists in holding a party, where there is, by law, or by contract, a choice between two remedies, which proceed upon opposite and irreconcilable claims of right, to the one taken.” He also quotes from Ratchford v. Cayuga County C. S. & W. Co. (217 N. Y. 565) : “ "Where two inconsistent remedies, proceeding upon irreconcilable claims of right, are open to a suitor, the choice of one bars the other.”
With the views thus- expressed I am in entire accord. The trouble with the appellant’s position, as I view it, is that the defendant in the prior action did not have a choice of remedies. I think she had a remedy only upon the agreement upon which she now sues. Her application to the court was erroneous.
The appellant also cites a number of cases as particularly applicable to actions of this character. I will discuss only one as fairly illustrative of them all. Randolph v. Field (165 App. Div. 279) was an action brought to recover certain installments alleged to be due under a separation agreement. The defendant interposed a defense in which he alleged in substance that after the making of the separation agreement the plaintiff commenced
The distinction between that case and this, as I view it, is that there was in that case a clear repudiation by the husband because of his failure to make the payments required by the agreement. In this case there has been no such failure. In fact the husband made the payments, so far as the pleading shows, right up to the time the motion was made for counsel fee and alimony. In that case also the court allowed and the plaintiff accepted more than she would have been entitled to under the agreement in question. In this case neither of those elements exists. The institution of an action to annul the marriage was clearly not a repudiation of the agreement to support the wife during the existence of the marriage. Her statement that it was a repudiation was not well founded. The court, however, made an order, but the order directed payment of just the amount the wife was entitled to under the agreement. This gave her no benefit she was not entitled to and did not, in my estimation, change the situation in any way. As was pointed out in Galusha v. Galusha (116 N. Y. 635) this agreement was binding upon the parties until it was canceled by mutual consent
The judgment and order appealed from should be affirmed, with costs.
Present — Kelly, P. J., Rich, Jaycox, Manning and Kapper, JJ.
Judgment and order of the County Court of Westchester county unanimously affirmed, with costs.