134 N.Y.S. 649 | N.Y. App. Div. | 1912
The defendants are husband and. wife. Having separated, they entered into an agreement on the 18th of February, 1890, through the medium of the plaintiff as trustee, by the terms of which the appellant,, the husband, agreed to pay $1,200 a year in monthly installments for the support and maintenance of the wife and two children, of whom the wife was to have the care and custody, and the trustee agreed to save the said appellant harmless from all debts thereafter contracted by the wife. The appellant made the stipulated payments up to May, 1910. The suit was brought in equity to reform the agreement
While there was no recital on the subject in the agreement, the undisputed evidence shows that the defendants had separated and were living apart when the separation agreement was made. The plaintiff evidently thought that it was necessary to reform the agreement, and so brought the action in equity, but the validity of the agreement depended upon the existence of the fact, not upon a recital of it. The appellant did not raise the question that the plaintiff had an adequate remedy at law to recover the monthly installments due (see Clark v. Fosdick, 118 N. Y. 7), nor did he request a jury trial. However, the provision of the judgment directing monthly payments in the future was plainly improper. The obligation of the appellant is a contract obligation, not to be enforced by contempt proceedings. Greenleaf v. Blakeman (40 App. Div. 371; affd., sub nom. Greenleaf v. Schley, 166 N. Y. 627) was an action for the specific performance of an agreement to give security.
The judgment should be modified so as to provide only for a money judgment for the installments due, and as thus modified affirmed, without costs.
Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.
Judgment modified as directed in opinion, and as modified affirmed, without costs. Order to be settled on notice.
