187 A.D. 258 | N.Y. App. Div. | 1919
Lead Opinion
The complaint alleges that the plaintiff and defendant duly intermarried on or about May 29, 1901, and that there are two children of said marriage; that on or about December 1, 1916, while living separate and apart from each other, they entered into a separation agreement. Said agreement is attached to the complaint and provides in great detail for cessation of all mutual relations; for the custody of the children by the wife until they attain the age of fourteen years, and thereafter, if no objection thereto be made by the husband, and for the payment to the wife of $700 a month, $500 being for her support, maintenance, use and benefit and $100 for the support and maintenance of each of the children. She covenanted so long as the payments were made to keep her husband free and harmless from any and all debts and liabilities incurred by her. There were further provisions covering the sale of property, policies of life insurance, and other matters evidencing great care and deliberation exercised in the drafting and execution of the agreement. The agreement contained these clauses:
“ Eleventh. In the event that the party of the first part*260 shall fail to keep any of the promises or agreements herein contained, the party of the second part shall have the right at her option either to bring an action for damages for the breach of this contract or to bring an action against the party of the first part for a legal separation, or for support and maintenance, and nothing herein contained shall in such event in any way affect, abrogate, or militate against the right of the party of the second part under such circumstances to bring any action for separation or for the restoration of conjugal rights or for support and maintenance against the party of the first part.
“ Twelfth. In the event that there should be any material change in the circumstances of either of the parties hereto either party hereto shall have the right to apply to any court of competent jurisdiction for a modification of the provisions herein regarding the amounts to be paid hereunder by the party of the first part to the party of the second part hereto.”
The complaint alleges that since said separation agreement was executed and delivered there has been a material change in the circumstances of the plaintiff whereby his income and earning ability have been materially and substantially reduced and that there has been a material change in the circumstances of the defendant whereby the personal and private income of defendant has been materially increased.
That the amounts which, in accordance with the course and practice of this court in matrimonial actions, should be fixed to be paid monthly by plaintiff to defendant for her support and maintenance, and for the support and maintenance of each of said children while in her custody, from and after October 1, 1918, having in view the financial condition, resources and income of plaintiff and defendant are $150 for the support and maintenance of defendant and $75 for each of said children, making $300 in all.
That the provisions in said agreement fixing amounts to be paid by plaintiff to defendant should be modified by reducing the aggregate monthly amount provided for to $300, and that such provisions, as so modified, should remain in full force and effect and binding upon the parties to said agreement until again changed pursuant to paragraph 12 of said agreement.
Wherefore plaintiff prays judgment that the amounts to be paid by plaintiff to defendant from and after October 1, 1918, for the period and the purposes and objects set forth in the separation agreement shall be $300.
If the court shall determine that it has not jurisdiction,
To this complaint the defendant demurred upon the ground that upon the face thereof it fails to state facts sufficient to constitute a cause of action.
I am of the opinion that this complaint does not state facts sufficient to constitute a cause of action. It is concededly not an action for the rescission of a contract because the plaintiff prays for no such relief and on the contrary stands upon the contract so far as it provides for a separation and all of the other matters embraced therein with the single exception of the amount which thereby he is required to pay for maintenance and support, nor is there any allegation upon which rescission could be based. If it be construed as an action to reform a contract it must fail because there are no allegations of fraud or mutual mistake; in fact the learned counsel for the respondent in his brief frankly says, “ of course we do not contend that there is any element of fraud, misrepresentation, concealment or duress in the case at bar.” It is suggested that this is an action for specific performance of the contract. What is the nature of that specific performance? The clause in the contract relied upon is “ in the event that there should be any material change in the circumstances of either of the parties hereto either party hereto shall have the right to apply to any court of competent jurisdiction for a modification of the provisions herein regarding the amounts to be paid hereunder by the party of the first part to the party of the second part hereto.”
The party of the first part, to wit, the husband, has, therefore, brought this action in the Supreme Court, a court of general jurisdiction, and the only specific performance which I can see
In Benson v. Eastern Bldg. & Loan Assn. (174 N. Y. 83), speaking of jurisdiction, the court said: “ That jurisdiction is prescribed by the Constitution of the State and the statutes passed under it. It can neither be added to nor subtracted from by the agreement of the parties. It is true that Parties, by their stipulations, may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce’ (Matter of N. Y., L. & W. R. R. Co., 98 N. Y. 447), but the jurisdiction of the court is beyond the agreement of the parties.”
In Meacham v. Jamestown, F. & C. R. R. Co. (211 N. Y. 346), where a provision of a contract as to arbitration was under consideration, Judge Cardozo said: “If jurisdiction is to be ousted by contract, we must submit to the failure of justice that may result from these and like causes. It is true that some judges have expressed the belief that parties ought to be free to contract about such matters as they please. In this State the law has long been settled to the contrary. [Citing cases.] The jurisdiction of our courts is established by law, and it is not to be diminished, any more than it is to be increased,, by the convention of the parties.”
Judge Cooley in his Constitutional Limitations (5th ed. p. 493) writes: “ It is a maxim in the law that consent can never confer jurisdiction; by which is meant that the consent of parties cannot empower a court to act upon subjects which are not submitted to its determination and judgment by the law.” In Dudley v. Mayhem (3 N. Y. 1) the court said: “ It has been long and correctly settled that not even a direct assent by the parties can confer jurisdiction, or render the judgment of a tribunal in a matter over which it has not by law any cognizance, effectual.” In Oakley v. Aspinwall (3 N. Y. 552) the court said: “ But where no jurisdiction
This is not a matrimonial action. I do not understand how a party can confer power upon the court in an action not matrimonial to act “ according to the course and practice of this court in matrimonial actions.” Title 1 of chapter 15 of the Code of Civil Procedure is entitled “ Matrimonial Actions,” and it provides in article 1 for an action to annul a void or voidable marriage; in article 2 for an action for divorce, and in article 3 for an action for a separation. It is obvious that the action at bar comes under none of these articles.
■ In Ramsden v. Ramsden (91 N. Y. 281) the complaint, after alleging the marriage of the parties and setting forth various acts of cruelty and ill-treatment on the part of the defendant toward the plaintiff, asked for judgment that the defendant be required to pay plaintiff a sum certain for her maintenance and support, and also asked for temporary allowance for alimony and counsel fees. The court said: “ The difficulty of the plaintiff’s case is that the action brought by her is not such action as the statute authorizes. It is not an action to procure a judgment of separation. No separation is asked for, and it is apparent that the omission in this respect was intentional. The plaintiff seeks maintenance and support, nothing more, and the learned counsel for the appellant says it was competent for her to ask relief in either form, and argues that ‘ if the court can grant maintenance apart from other relief, then the plaintiff may properly have that alone, and to pray for relief which is not really sought is not merely a formal absurdity, but it is misleading to the defendant.’ The answer, however, is that the action is a statutory one, and if prosecuted,
This decision was made notwithstanding that section 1766 of the Code, in the article governing separation, provides: “ And the court may, in such an action, render a judgment, compelling the defendant to make the provision specified in this section,” that is, for the support of the wife and children, “ where, under the circumstances of the case, such a judgment is proper, without rendering a judgment of separation.”
In Johnson v. Johnson (206 N. Y. 561) the complaint alleged a separation agreement, and because of the undue influence exercised by the defendant in securing execution of said agreement, etc., and because of the unfair, unjust a'nd inequitable terms of said deed or agreement the plaintiff claimed that the same was or is at her option void, and should be set aside and canceled. The prayer for relief, however, did not ask that said agreement as a whole be set aside, but only that it be set aside so far as it limits the plaintiff to the sum of $25 per week and asks that at least the sum of $3,000 a year be allowed to her for fife, together with a sum to defray the counsel fees and expenses of this action, together with such other and further relief as may be right and just in the premises. The court said: “ This examination of the complaint makes it clear that this action is not a matrimonial action, or as urged by respondent’s counsel, ‘ in the nature of a matrimonial action,’ so as to permit the allowance of counsel fees on that ground. The plaintiff clearly and designedly does not appeal to the court to grant her a separation from her husband, but stands on the agreement of separation voluntarily executed by the parties and under which they have already for several years lived. The most that can be claimed in behalf of the action for the purpose of bringing it within the class named is that the parties having
After considering Bamsden v. Bamsden (supra) the court said: “ If the court could not entertain jurisdiction for the purpose of giving support, alimony and counsel fees in an action like the one cited where facts were alleged entitling the plaintiff to a decree of separation but she not asking for it, it seems apparent that it cannot take jurisdiction of the present action as a matrimonial action for the purpose of awarding similar support and counsel fees where the parties have already agreed on a separation and the plaintiff does not ask for a decree awarding that feature of relief.” Again: “ The question thus becomes whether where parties do enter into a separation agreement which provides as one of its features for an allowance to the wife, the court can annul this latter provision leaving the rest of the agreement intact, and then substitute its decision for the agreement of the parties as to the amount of allowance. It is very clear that this cannot be done. In the first place, the amount of allowance for support to be paid by the husband is so far an integral part of the agreement for separation that I doubt whether it could be set aside without annulling and canceling the entire agreement. But beyond this the court cannot reform an agreement entered into by parties by making a new agreement or provision for them in the place of the one which they have adopted. (Hughes v. Cuming, 165 N. Y. 91, 96, 97.)
“ It would seem that the present case has been confused with those in which the courts have so reformed a contract, whose execution has been attended by mistake or fraud, as to make it conform to the agreement actually made and intended by the parties. But those cases are no authority for the proposition that the court may cancel a contract made by
While it is true that the precise question before the court in Johnson v. Johnson (supra) was the allowance of counsel fees, yet nevertheless I do not feel that we are at liberty to disregard the careful consideration given by the court of last resort to the character of the action and the jurisdiction of the court. I reach the conclusion, therefore, that the facts set forth in the complaint do not constitute a cause of action known to the law and that the court has no jurisdiction of the cause of action attempted to be set forth.
It follows, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the demurrer sustained, with ten dollars costs.
Dowling and Page, JJ., concurred; Shearn and Smith, JJ., dissented.
I would be content with merely concurring in the opinion of the presiding justice, but in view of certain propositions contained in the opinion of Mr. Justice Shearn, not discussed by the presiding justice, it seems to me advisable to state my views more fully. When a husband and wife desire to separate and five apart there are two courses open to them. If the cause of their separation is one which is one of those stated in section 1762 of the Code of Civil Procedure, a resort may be had to the court, and a decree separating the parties may be granted, and if the decree is in favor of the wife it may as incidental relief provide suitably for the custody, care, education and maintenance of the children of the marriage and for the support of the wife, having regard to the circumstances of the respective parties, and may also provide that if there is a change in the circumstances of either party an application may be made at the foot of the decree for a modification thereof. Or the parties, whether cause therefor exists or not, may agree to separate under such conditions as the law permits (See Galusha v. Galusha, 116 N. Y. 642; Clark v. Fosdick, 118 id. 12-14), and make such provision as they deem advisable for maintenance and sxipport. The parties to this action adopted the latter course, but have sought to secure to themselves the
This discussion is of course beside the question for this agreement does not provide for arbitration. The relief demanded is that the court shall fix the amount to be paid
Dissenting Opinion
This case presents a very interesting question. It arises upon a demurrer to the complaint. The complaint shows that the parties, husband and wife, having separated, entered into a separation agreement on December 1, 1916, which provided, among other things, for the payment by the husband to the wife of $500 a month for her support and of $200 a month for the maintenance of the children of the marriage. The agreement, in paragraph 12, provided: “ In the event that there should be any material change in the circumstances of either of the parties hereto either party hereto shall have the right to apply to any court of competent jurisdiction for a modification of the provisions herein regarding the amounts to be paid hereunder by the party of the first part to the party of the second part hereto.” The complaint alleges that the plaintiff performed all the covenants in the agreement on his part, but that since the agreement was executed there has been a material change in the circumstances of the plaintiff, whereby his income and earning ability have been materially and substantially reduced. Plaintiff is a lawyer whose income for the past ten years has been derived almost wholly from real estate conveyancing and real estate transactions and the practice of law in connection with such transactions. Shortly after the execution of the agreement the number and magnitude of real estate transactions in the city of New York, and in plaintiff’s practice, became greatly reduced. For the year 1917, the year following the execution of the agreement,
The question presented is whether the court has jurisdiction of the subject-matter of the action. Jurisdiction of the subject-matter is defined in Hughes v. Cuming (165 N. Y. 91, 95) as “ ‘ power to adjudge concerning the general question involved, and is not dependent upon the state of facts which
I agree entirely with the proposition of law, elaborated in the opinion of the presiding justice, that jurisdiction cannot be conferred by consent. But the relevancy of this rule depends upon a correct construction of the contract with which we are dealing. I find in the contract no attempt of the parties to confer jurisdiction upon the court. It is a straightforward clearly expressed agreement for the payment and acceptance of a specified allowance, so' long as there is no material change in the circumstances of the parties, with a plainly implied agreement for the payment and acceptance, on material change in the circumstances of the parties, of a reasonable allowance in view of the resources and income of the parties. The only unusual provision is the one which, instead of providing that what is a reasonable amount, in such case, shall in the event of disagreement be determined by arbitrators, this agreement provides that it shall be determined by the court, which, as I shall point out, is just what the court would do if it had been left to arbitrators and the arbitration failed. Therefore, as I view the action, it is one brought upon a contract, to compel its specific performance by the defendant, namely, to compel the acceptance of a reasonable allowance under the changed circumstances, as. agreed, the amount of which the plaintiff offers and asks to have fixed in the manner stipulated in the contract. If such is the true construction of the agreement and the nature of the action, it seems clear that the court possesses jurisdiction, even though it is conceivable that the court might decline to exercise it.
I also agree that if this action were of the same nature as in Johnson v. Johnson (206 N. Y. 561) or in Ramsden v. Ramsden (91 id. 281) the court would be without jurisdiction. But there is no similarity between this case and the Johnson case. That was an action brought by the wife against her husband to set aside a separation agreement as unfair and inequitable and inadequate so far as it limited the plaintiff
In Ramsden v. Ramsden (supra) it was merely held that a wife cannot maintain an action against her husband for maintenance and support or for alimony alone; that alimony and
It is apparent that if Johnson v. Johnson (supra) was not a matrimonial action, this action is not, and the presiding justice has. reached the conclusion, as stated in his opinion, that this is not a matrimonial action. An action is not a matrimonial one or in the nature of a matrimonial action merely because it deals with the provisions of a separation agreement. This is well illustrated by the case of Greenleaf v. Blakeman (40 App. Div. 371; affd., sub nom. Greenleaf v. Schley, 166 N. Y. 627) where the court granted specific performance of one of the terms of a separation agreement, whereby the husband agreed that the payment of the allowance should be “ secured either by bond of sufficient surety, individual or corporate, or by collateral security of suitable character and in market value not less than seventy thousand dollars.” The court held that it could not be contended that the covenant that payment should be secured by a bond of sufficient surety or collateral security of suitable character was too uncertain and indefinite to justify a decree for specific performance, on the ground that there was no provision as to who should determine the sufficiency of the surety or the character of the security, but that this could be determined by the court. The court said: “ The amount of the bond or the sufficiency of the surety could be ascertained by the proof of extrinsic facts which a court specifically enforcing the agreement would require, and those facts being proved, the sufficiency of the surety could be easily and accurately ascertained.” (P. 379.)
This action then, not being a matrimonial one, or in the nature of a matrimonial action, but the general question being the construction of the contract and whether it is capable of specific performance as therein stipulated, let us turn for a moment to the agreement. A contract comprehends not only what the parties expressly write but also that which is to be implied from what they have reduced to writing. The courts are bound to give the same force and effect to the implied agreement of the parties, where such implications
This agreement, thus construed, provides that on material change of conditions, such as shown to exist, the specified allowance shall no longer be paid by the plaintiff, but that henceforth the plaintiff shall pay and the defendant accept such reasonable allowance as the court shall prescribe, according to its course and practice in matrimonial actions, having in view the station in life and the resources and income of the respective parties. The most serious objection to the court’s jurisdiction to compel specific performance of such an agreement is that the new sum to be paid and accepted is not definitely fixed by the agreement itself, but that, instead, the agreement merely provides the manner in which the new sum shall be fixed and contains the unusual provision that it shall be fixed by the court.
An examination of the cases shows that in principle there is nothing even unusual in such an agreement and, in my opinion, nothing beyond the court’s jurisdiction. In an action not matrimonial in its nature (and we have seen this is not a matrimonial action) an agreement to sell property at a reasonable valuation to be fixed by the court, or to perform services at a reasonable price to be fixed by the court, is undoubtedly enforcible, however it strikes one at first blush. It has been held over and over again that where there is an agreement to renew a lease at a price to be fixed by arbitrators, on the failure of the arbitrators to agree, the court will fix the price. (Kelso v. Kelly, 1 Daly, 419; Weir v. Barker, 104 App. Div. 112; Van Beuren v. Wotherspoon, 12 id. 421.) It was held in Joy v. St. Louis (138 U. S. 1, 8, 9, 43), where two railroads had made a contract whereby one was to be allowed to use a portion of the right of way of the other and they prescribed that the compensation should be “ such fair and equitable compensation * * * as may be agreed upon,” that where they failed to agree- the court would fix the compensation.
There is no difference in principle between an agreement to take a resonable payment to be fixed by arbitrators and one to take a reasonable payment to be fixed by the court. In the former case the parties are really contracting that in a certain event it shall be fixed by the court, for they know that, as the cases above cited show, if the arbitrators fail to fix the price, the court will. Therefore, if parties can agree, and if the courts will enforce the agreement, that a fair price, valuation or compensation shall be fixed by arbitrators, and, if they do not agree, by the court, there is certainly no reason why they cannot agree, and why the court should not enforce the agreement, that the fair price, valuation or compensation shall be fixed by the court. That is, in effect, what parties do when one renders services for another, or sells goods to another, without stipulation as to price, for the law says that they impliedly agree that the one shall pay and the other accept a fair price, to be fixed by the court in the event that they do not agree.
If this agreement had provided that on changed circumstances the plaintiff should pay and the defendant accept an allowance to be fixed by arbitrators, the agreement would clearly be enforcible. And if the arbitrators failed to agree, the court would fix the amount, which is readily done by applying known standards and well-settled rules governing what is fair and reasonable in such cases. A stipulation such as this, to pay and accept an allowance to be fixed by the court, is one to pay and accept a fair and reasonable allowance, which is definitely determinable according to
The presiding justice asks what is the nature of .the specific performance sought in this case, answers the question by quoting paragraph 12 of the agreement, and concludes that the specific performance sought is that the court shall act. But this ignores the implied agreement that, on material change in the circumstances of the parties, the defendant will accept a reasonable allowance, having in view the resources and income of the respective parties and the standard ordinarily applied in matrimonial actions, such reasonable allowance to be fixed by the court. Thus the object of the action is to compel the defendant to accept a reasonable allowance, as agreed, and the fixing thereof by the court is incidental thereto, but in accordance with the agreement.
If a separation agreement provided that the husband should pay and the wife accept a reasonable sum, having in view the resources and income of the parties and the standard ordinarily applied in matrimonial actions, it cannot be doubted that in an action on the contract the wife could recover, for the sum could be ascertained by the proof of extrinsic facts and according to well-settled rules, just as the proper bond and sufficient surety was determined in Greenleaf v. Blakeman (supra). The reason why specific performance is necessary in this case is that the plaintiff has no adequate remedy at law, for the defendant in effect claims that the payment tendered is not a reasonable amount, refuses to have the amount fixed as provided in the contract, and is bringing numerous suits in the Municipal Court to recover the monthly installments, which the plaintiff only agreed to pay so long as the circumstances of the parties remained substantially
I am not unmindful of the fact that if the plaintiff’s right to relief be sustained, it may involve other and subsequent resort to the court, in the event of further changes in the circumstances of the parties, whether for the better or for the worse. But this is merely an argument based on inconvenience, which, while it might lead the court to decline jurisdiction, does not touch the question of law, which is whether or not the court possesses jurisdiction over the subject-matter of the action.
In my judgment, the complaint states a cause of action, and the order should be affirmed, with ten dollars costs and disbursements, with leave to the defendant to withdraw the demurrer and to answer within twenty days on payment of costs in this court and at the Special Term.
Smith, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion to sustain demurrer granted, with ten dollars costs.