17 Misc. 2d 380 | N.Y. Sup. Ct. | 1959
This is a motion for alimony and counsel fee pendente lite.
It is conceded that prior to the commencement of this separation action and on the 1st day of November, 1955, a written separation agreement was entered into, a copy of which is annexed to the answer herein. It further appears that the defendant has been making the payments under said separation agreement and there is no claim of default. However, the plaintiff contends that on various occasions after the execution of the separation agreement the parties lived together as husband and wife and argues therefrom that the separation agreement came to an end. On the other hand, the defendant insists that at no time did he live with plaintiff as husband and wife following the separation agreement and that the separation agreement is still in force and effect.
It is obvious, in view of the conflicting claims of the parties that the validity of the separation agreement cannot be determined upon the affidavits submitted and must await the trial (Sullivan v. Sullivan, 285 App. Div. 967; Botway v. Botway, 273 App. Div. 948; Rosenblatt v. Rosenblatt, 209 App. Div. 373). In Sullivan v. Sullivan, (supra) the court said: “ Plaintiff is not entitled to the relief sought by this motion unless the question whether the separation agreement is valid and enforcible is first decided adversely to defendant. Such determination may not be made on the pleadings and conflicting affidavits herein and should, therefore, be left to the trial court.” (Also, see, Brody v. Brody, 190 App. Div. 806; Fierman v. Fierman, 62 N. Y. S. 2d 650.)
Under the circumstances disclosed, this court has no discretion in the matter and must deny the motion of the plaintiff. It is only the trial court which would be in a position to determine the truth of the relations between the parties. •