72 N.Y.S. 529 | N.Y. App. Div. | 1901
This action is brought to obtain a divorce. The defendant denies the adultery and counterclaims for a divorce against plaintiff. That part of the order appealed from requires plaintiff to pay seven dollars per week alimony. The order also requires the payment of seventy-five dollars counsel fees and to this no objection is interposed. There has been no issue of the marriage.
It was shown and uncontroverted that on the 25th day of September, 1898, plaintiff, defendant, his wife, and a third party as
In defendant’s answer it is alleged that the execution of this agreement by her was procured through fraud, deceit and duress, and she asks for its cancellation. In her affidavit in support of the motion the facts and circumstances upon which she bases this contention are set forth. They are in substance that she had discovered infidelity on the part of her husband, and demanded that he convey to her said saloon and business, it having been purchased, as she claims, with her money, which he agreed to do, and they went to a lawyer’s office to have the pajiers drawn, and that there she was induced to execute the separation agreement in ignorance of its contents.
It also appears, without dispute, that these parties have never since lived together, and that plaintiff has not, during the thirteen years which have elapsed, contributed further toward the support or maintenance of his wife. She conducted the saloon business for a period of about seven years and then, with her bartender, the co-respondent mentioned in the complaint, went to Europe, and
Controversies had arisen which justified plaintiff and defendant in living apart, and they are briefly recited in the separation agreement. In these circumstances the separation agreement for the separate support and maintenance of the wife, made through the intervention of a trustee, was valid and binding upon the parties until set aside by a court of equity. (Galusha v. Galusha, 116 N. Y. 635 ; Clark v. Fosdick, 118 id. 7; Hungerford v. Hungerford, 161 id. 550.)
If defendant had any ground for equitable relief from the separation agreement, she could have brought a suit for that purpose at any time during the last thirteen years. It is true she claims to have been ignorant of the contents of the agreement until the month of February last, when it was produced in the Magistrate’s Court during the hearing of her application to compel plaintiff to provide for her support, but she did not see fit to take any proceedings prior to that time to compel such support, although she had instituted and prosecuted an action for divorce against plaintiff without success.
We think the law does not authorize an award of alimony pendente kite, where, as in this case, there is a valid outstanding separation agreement remaining of full force and effect, and in and by which the parties have covenanted to live separate and apart for the remainder of their natural lives, and provision deemed by the wife and her trustee sufficient has been made for her permanent support and maintenance, and she has released the husband from all liability in that regard, and the trustee has agreed to save him harmless from her debts. (Galusha v. Galusha, 116 N. Y. 635; 138 id. 273, 282.
The order should, therefore, be modified by striking out the pro vision requiring the plaintiff to pay the defendant alimony, and as modified affirmed, without costs.
Van Bbunt, P. J., Patteeson, O’Beien and Ingkaham, JJ., concurred.
Order modified as directed in opinion, and as modified affirmed, without costs.