Reardon v. Woerner

97 N.Y.S. 747 | N.Y. App. Div. | 1906

Gaynor, J.:

It is too well known among us that such a contract has long been held to be valid to call for the citation of authority.

It has of late been held, however, in the case of Carling v. Carling (42 Misc. Rep. 492). that the provision at the end of section 21 of the Domestic Relations, Law (Laws of 1896, chap. 272), that “a husband and wife can not contract to alter or dissolve the marviage, or to relieve the husband from his liability to support his wife,” changes the law and makes such a contract illegal, in that it .may secaré to a wife less than she might be able to get by going to law, and relieve the husband. of his liability to that extent. . I do not see how we can acquiesce in this view. Substantially the same provision is to be found in chapter 594 of the Laws of 1892, which amends the act of 1884 (Chap. 381) in relation td the rights and liabilities of married women, and such an effect was never-claimed for it. If is quite manifest that the Legislature had no such, intention. r

The contention, that only a suit in equity, and not an action at law, can arise upon,the contradi, and that the court below was without jurisdiction inasmuch as it has no jurisdiction of suits in equity, has no foundation. .

The judgment is affirmed, with costs. ,

Hi-rsohberg, P. J., Woodward, Jbnks and Hooker, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.