142 N.Y.S. 54 | N.Y. App. Div. | 1913
Although there is an answer in the case denying numerous allegations of the' complaint, it is to be disregarded in this motion, which is to be considered as if made on demurrer.
The action is to set aside a separation' agreement.
The complaint-alleges the marriage of the parties in 1906 and that between that event and March, 1908, defendant exhibited great ■ cruelty toward plaintiff; that in July, 1906, immediately after marriage, defendant borrowed $5,000 from plaintiff, which he has never returned; that soon after marriage defendant "introduced a woman named Fanny Lefkowitz into the household and so conducted himself with her that subsequently said woman’s husband procured a divorce, naming defendant as corespondent; that plaintiff on September 26, 1912, began a divorce action against defendant on account of his." relations with this Lefkowitz woman, to which action defendant has interposed no defense.
The complaint goes on to show that in September and October, 1907, she consulted various attorneys with reference to suing her husband, and finally in March, 1908, through one John S. Bennett, she began an action for a separation. After this action had been begun' plaintiff went to Bennett’s office and was shown a proposed separation agreement, which she signed. It is this agreement which it is sought to set aside.
The complaint contains the following paragraphs which state, the grounds upoh which she seeks relief: “XII. That at the
“ XIII. That by reason of the peculiar relations between the said plaintiff and the defendant, and on account .of the cruel treatment • by the defendant of the plaintiff, and on account of the circumstances existing at and before the execution of said agreement as hereinabove stated, the said agreement was executed- by plaintiff unadvisedly and imprudently, and because of its unfair, unjust and inequitable terms and also for the reason that the provisions in said agreement for plaintiff’s support were and are inadequate, the plaintiff claims that the same was or is at her option void and should be set aside and canceled by the court, as unfair, inequitable and inadequate.”
Plaintiff alleges that she has already spent the $5,000 paid to her under the separation agreement; that defendant is in prosperous circumstances and that she herself earns only $10 a week.
The agreement thus attacked is in the usual form and provides for the payment to plaintiff of the gross sum of $5,000 as provision for her permanent support.
The complaint is not, in our opinion, so plainly insufficient as to justify the order appealed from. The facts alleged very closely resemble those contained in the complaint in Hungerford v. Hungerford (161 N. Y. 550). In that case the Court of Appeals, speaking by Cullen, J., pointed out the difference in the requirements of an action to set aside a- contract like that involved in this action, and one to set aside an ordinary contract between persons not man and wife. The opinion
The case referred to by the learned justice at Special Term,' and not much relied upon by the respondent (Johnson v. Johnson, 206 N. Y. 561), was not. intended, as we understand it, to overrule the Hungerford case. What was decided in Johnson v. Johnson was that an action like the present is not a matrimonial action, and fhat alimony and counsel fees could not be awarded in it. It is true that in the course of the opinion one or two expressions are used seemingly at variance with those used in. the Hungerford case, and quoted above, as to the necessary allegations in such a case, but those expressions were not necessary to the determination of the question really at issue, and may safely be regarded as obiter dictum. Furthermore, the plaintiff in the Johnson case did not seek to set aside the whole agreement between herself and her husband, but only so much thereof as related to her sup
It is apparent, and is not denied, that one purpose of seeking the annulment of the separation agreement, and perhaps the principal reason, is that the plaintiff may be enabled to secure proper provision for her support in the judgment she expects to recover in the action for a divorce now pending against her husband. This is not an objection to the maintenance of the action. (Galusha v. Galusha, supra.)
The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion for judgment denied, with ten dollars costs.
Ingraham, P. J., Clarke, Dowling and Hotchkiss, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.