84 N.Y.S. 444 | N.Y. App. Div. | 1903
Lead Opinion
At the time of making the contract the wife- had Drought an action for separation, and the defendant Sommer prior thereto had brought an action for an absolute divorce, and, upon a trial had, was defeated. The action for separation remained pending. In that action .the plaintiff might have procured from the court an award of alimony and counsel fee, and, in the event she was successful, procured a permanent award of alimony. It was therefore to the substantial benefit of the defendant to procure a discontinuance of that action, as by so doing he would relieve himself from contingent liability in this respect. This condition furnished a good consideration for the agreement. Adams v. Adams, 91 N. Y. 381, 43 Am. Rep. 675. The contract provided for the resumption of the marital relation, and, instead of being against public policy, was in harmony with it. The continuance of the marital relation is always regarded, in the law, as a relation to be promoted and maintained. It frowns upon agreements for its destruction, and smiles upon agreements which restore its relation when interrupted. Train v. Davidson, 20 App. Div. 577, 47 N. Y. Supp. 289. This agreement is not in contravention of the domestic relations law (Laws 1896, p. 215, c. 272). By section 21, p. 220, a married woman is made free to contract as if she were unmarried; the only limitation being that she may not contract to alter or dissolve the marriage, or relieve the husband from his liability to support her. By virtue of the contract the relation was restored, and the defendant was only required to discharge his marital obligation, to relieve himself from charge under the contract. The obligation, however, rested upon the plaintiff to perform faithfully the marital obligations which devolved upon her, and, if she failed in these respects, it constituted a perfect defense to any action to enforce the contract, for thereby she would be enabled to take advantage of her own wrong. The defendant Sommer avers in his answer that the plaintiff violated her marital obligations in several particulars, and he gave evidence in support of such averments. Thereunder the court would have been authorized to find that the plaintiff was guilty of a
So far as the defendant Vogel is concerned, a decision has been made by the court in her favor. The proof given upon the trial was sufficient to warrant the decision which was made, and the judgment which was entered. She makes no claim which is in the slightest degree antagonistic to the plaintiff’s rights in the premised, if she have any. She is a tenant in common with the defendant Sommer, and, as such, receives her proportion of the rents and income of the property. The plaintiff has no interest whatever in
VAN BRUNT, P. J., and O’BRIEN and INGRAHAM, JJ., concur.
Concurrence Opinion
I concur in result, but am of opinion that the agreement is not enforceable. The abandonment of her action constituted a good consideration for any unconditional agreement for the payment of monéy that the wife saw fit to exact. I regard the agreement in advance for the settlement of any future difference that might arise between husband and wife after resuming marital relations as. against public policy, in that it was calculated to produce discord for the purpose of enabling the wife to secure the property rights thus agreed to be given, and was, therefore, a constant menace to domestic peace.