130 Misc. 541 | N.Y. Sup. Ct. | 1927
Defendant moves for leave to serve an amended answer. A copy of the proposed answer was served with his motion papers and his affidavit presents a sufficient excuse. The defendant’s motion should be granted and the proposed answer as served upon plaintiff’s attorney may be deemed served for all purposes of this case and will be considered upon this motion as defendant’s pleading herein.
The parties to this action were married on December 28, 1905, and lived together until November 16, 1918, when they separated and they have since lived separate and apart. They have three children. On January 21, 1919, they entered into a separation agreement by which plaintiff was given the custody of the children and defendant agreed to pay to plaintiff $200 per month for the support of herself and the three children, all of whom were then
Under the latter instrument, defendant agreed to pay to plaintiff the sum of $400 each month, “ which payment is for the support and maintenance of the party of the second part [plaintiff herein] and such children as shall be with her.” The latter agreement did not supersede the first agreement of separation but modified it in certain particulars, only leaving in force the first agreement except as to the particulars in which it was modified. In neither instrument does plaintiff specifically agree to support and maintain the three children or any of them out of the payments provided, although it was doubtless intended when the first agreement was signed that she should support all of the children who might live with her, and under the second agreement the youngest child. As the agreements stand, the most that she could be required to do was to furnish support to those children who might be with her from time to time.
Since October 1, 1924, defendant has been continuously in arrears in payments for at least two months. On February 18, 1927, plaintiff brought an action against defendant for the recovery of $2,650 which was then due and unpaid. Defendant settled that action by paying plaintiff $1,200 in cash and delivering to her his negotiable promissory note for $1,450, payable on April 5, 1927. Upon this note $1,200 has been paid. Plaintiff now sues upon this note for $250 and interest. Defendant, under a general denial, seeks to put in issue the question whether plaintiff is the owner and holder of the note and as to whether any sum is due. The note is produced by plaintiff. The answer contains no allegation of payment and it is clear that defendant has no defense to the action to recover on this note. (Rodger v. Bliss, 130 Misc. 168.)
Plaintiff also seeks to recover $1,600 claimed to be due and unpaid for the period from March to June, 1927, inclusive, and the complaint states a cause of action for recovery of that sum.
. Defendant fails to set up by affidavit or otherwise any facts to show that this sum has been paid and he has no defense on the ground of payment. (Rodger v. Bliss, supra.)
Defendant seeks to defend himself against recovery of the $1,600 - claim on the ground that plaintiff has failed to perform her obligations under the separation agreement in two respects: First, defendant asserts that the sum of $400 per month was to be paid
There is no attempt here to set aside the agreement in its entirety. No fraud is alleged in its inception. It is not shown by defendant that any reason exists why a court of equity should interfere with an agreement fairly and advisedly made by defendant. The agreement must be held valid and enforcible in all its terms until set aside in its entirety by a court of equity for fraud in its inception or for other reason which may be sufficient to nullify the agreement as a whole. (Winter v. Winter, 191 N. Y. 462.)
Here an attempt is made to invoke the equitable powers of the court to modify one provision of the agreement only, leaving the rest unaffected as framed by the parties. This the court has no power to do. (Stoddard v. Stoddard, 227 N. Y. 13.)
The motion of defendant to serve an amended answer should be granted and the proposed answer served with the motion papers should be deemed served for all purposes of this case.
The answer as amended should be stricken out and judgment awarded to plaintiff for $2,090.55, with costs, including $10 costs of this motion.
So ordered.