159 N.Y.S. 586 | N.Y. Sup. Ct. | 1916
This motion involves the sufficiency of the complaint, which is for separation on the ground of cruelty. As a pleading the complaint is subject to criticism on numerous grounds, but as these questions are not raised I shall assume the allegations to be sufficient with respect thereto. The alleged acts of cruelty were committed in 1908 and “ continued” up
The agreement on the part of the plaintiff to indemnify the defendant against bills contracted by her was in the form of a provision to' the effect that in the event he should be compelled to pay any such bills, the amount thereof might be deducted from the weekly payments. It was also provided that neither of the parties would “ interfere with the rights, privileges, doings or actions of each other, and will not interfere in any way, manner or shape with each other, and each of the parties is at liberty to act and do as they see fit,” and for a breach of this covenant by the plaintiff it was provided that the defendant might at his option rescind the agreement. Finally it was provided that ‘ ‘ neither
Turning to the decisions in this state, I find that the courts have frequently pointed out the distinction between the provisions for maintenance and those for separation; but having regard for the history and gradual development of our law on the subject of the pecuniary features of separation agreements I find no case of controlling authority on the precise question involved here. In Anderson v. Anderson, 1 Edw. Ch. 380, 1832, it was held by Vice-Chancellor McCoun that a deed of separation was no bar to a suit for divorce, either previous or subsequent to the act alleged (see also Randolph v. Field, supra), nor could it be pleaded in a suit for restitution of conjugal rights, even though the settlement contained a covenant not to bring such a suit — the decision thus following the English ecclesiastical authorities of that date. In Rogers v. Rogers, 4 Paige, 516, 1834, the wife filed a bill for separation. Pending the action a separation agreement was entered into whereby the wife agreed to abandon the suit and the husband agreed through a trustee to provide separate maintenance. On the wife’s continuing the action contrary to the agreement, and moving for temporary alimony, it was held that the agreement was no bar — for two reasons: (a) The agreement was invalid so.far as it related to separa
In the light of the foregoing I feel justified in saying that the common law of this state always has been, and it still is, that the fact of separation, or a covenant therefor, cannot be relied on to support any part of the consideration of a separation settlement or a separation agreement. It also seems that such is the statute law of the state. Chapter 594 of the Laws of 1892 amended the law relating to the rights and liabilities of married women, among other things, by adding the following proviso: ‘ ‘ But nothing herein contained shall be construed to authorize the husband and wife to enter into any contract by which the marriage relation shall be altered or dissolved or to relieve the husband from Ms liability to support his wife.” When carried into the Domestic Relations Law in 1896 (see chap. 272), the foregoing provision was incorporated into section 21 in the following words: ‘ ‘ But a husband and wife cannot contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife,” and in this form it now appears in section 51 of the Domestic Relations Law.
I conclude, therefore, that the agreement in question, although a valid subsisting agreement, so far as its pecuniary features are concerned, is not a bar to the maintenance of this action.
Motion denied, with ten dollars costs.