190 A.D. 463 | N.Y. App. Div. | 1920
The plaintiff and defendant were married at Coaticook, Province of Quebec, Canada, on August 9, 1894. There is no
After years of marital infelicity and the relations of the parties becoming strained to the breaking point, on July 8, 1916, the defendant commenced an action against the plaintiff to obtain a decree of separation upon the ground of cruel and inhuman treatment of defendant by plaintiff. At the time of the commencement of said action plaintiff and defendant were residing beneath the same roof in the city of New York, sometimes taking their meals together, but otherwise occupying separate rooms. As before stated, since 1909 they had not cohabited as husband and wife. The evidence shows that during recent years they were very little in each other’s society, and while the marital relations have never been dissolved by the decree of any court of competent jurisdiction, still to all
After the commencement of the action for separation the plaintiff herein (the defendant in the separation action) retained a reputable attorney to represent her in the action, and said attorney duly appeared therein in defendant’s behalf. Thereupon and during the month of July, negotiations were entered upon between the parties, aided and assisted by their respective attorneys, looking toward an adjustment of the rights of the parties, to the end that they at that time having separated, proper provision should be made for the separate support and maintenance of the defendant in said action (the plaintiff herein) out of the property of this defendant, upon consideration of said defendant’s releasing plaintiff from all further liability for her support and releasing and discharging her dower in his real estate. During the pendency of said separation action, and except for such negotiations, the parties saw little of each other. Later in the month of July the defendant left plaintiff and spent his summer vacation away from the city of New York, returning about the 21st of August, 1916. Within two or three days thereafter the plaintiff herein left for a visit among friends at Beacon Hills, N. Y. Prior to leaving, a settlement had been agreed upon between the parties to the effect that the parties should separate and thereafter live separately and apart, and that the household effects of the defendant herein should be divided between them. Written lists were, prepared specifying a division of the household furniture and personal effects of the parties. Adjustment was made through the defendant paying plaintiff for certain of the goods and household effects that he desired to keep which had fallen to plaintiff upon such division. Through negotiation it had been further agreed that the defendant herein should pay the plaintiff the sum of $6,000 in cash upon the execution of proper instruments releasing her dower in any real estate of which the defendant was seized, and that in addition thereto defendant should pay plaintiff the sum of $100 a month for the period of two years following the execution of said release. In the month of August, 1916, before the plaintiff herein left to visit her
On August 31, 1916, the plaintiff returned from her visit to her friends at Beacon Hills, and, stopping merely for a cup of tea at the home of the parties, went to the law offices of her attorney in the city of New York, and there met the defendant and his attorney. Prior to that time papers had been prepared for execution of the parties in accordance with the agreement which they had reached, providing for the payment by the defendant herein to the plaintiff of $8,400, being $6,000 in cash and $100 a month for the period of two years, and which sum the plaintiff herein was to accept from the defendant in full of all claims for support and maintenance or any other claim of any other kind that she had or might have against the defendant, including her dower interest in his real estate. The parties and their respective counsel, on said 31st day of August, 1916, at the office of the attorney for the plaintiff herein, conferred together at great length. During their conferences and negotiations looking to a settlement of the action for separation which had been brought against the plaintiff by the defendant herein, defendant’s financial condition and property were discussed at length by the parties and their respective counsel. In addition to the attorney for the plaintiff herein who represented her at said conference and who was an attorney of unimpeachable character and high standing at the bar, another reputable attorney was called in to aid and counsel with the plaintiff concerning her rights on such settlement. After long negotiations, extending from two o’clock in the afternoon until seven o’clock at night, the parties finally reached an agreement and the paper referred to as a separation agreement was executed and acknowledged by both parties under their hands and seals. This paper, executed August 31, 1916,
Immediately after the execution of the agreement on August 31, 1916, the plaintiff herein went to the home of the parties and remained over night, as the hour was then too late for her to find lodging elsewhere. Under the terms of the settlement she was to have until September tenth to remove her personal effects and share in the division of the household effects from the home of the parties. The defendant herein did not return to his home that night, but passed the night with a friend in New Jersey. The following morning, on September first, the plaintiff herein left the home and has not since been an inmate of defendant’s household.
Matters drifted along without suggestion that the agreement thus entered into was invalid, the parties evidently treating the same as a finality, until on or about the 9th of
This action is brought and the decision of the learned court at Special Term was based upon the assumption that at the time of its execution the parties were living together as husband and wife, and that there had been no separation between them, and that the separation resulted from the execution of said agreement.
From a careful review of the evidence I am unable to adopt the conclusion which the learned trial court reached. While under the terms of the Domestic Relations Law of the State of New York (§ 51) a husband and wife cannot contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife, still the law is reasonably well settled, I think, in this State, that, having separated, an agreement between the husband and wife to continue to live separate and apart and providing for the separate support of
As to the further ground upon which the written agreement of the parties was held invalid, I think the learned court at Special Term was also in error in holding that said agreement was inequitable in that no adequate provision was made for plaintiff commensurate with the defendant’s financial condition and ability. Upon the evidence I think the court below clearly erred in finding the agreement inequitable and in making such inequitableness a legal basis for setting aside the agreement of the parties. I am aware that agreements such as the one under consideration have been set aside by the courts where obtained through fraud, duress, concealment or other unfair advantage and where the provision of the defendant for the wife was disproportionate to her needs and her husband’s financial ability. If it appears that the wife has been induced, through fraud, misrepresentation or duress, to agree to accept an inadequate and disproportionate amount in lieu of her husband’s legal obligation to support and maintain her, a court of equity may permit her to rescind the agreement upon restitution, so far as possible, of any moneys paid to her by her husband under such agreement. (Pelz v. Pelz, 156 App. Div. 765; Hungerford v. Hungerford, 161 N. Y„ 550.) But the evidence here fails to disclose the perpetration of fraud upon the plaintiff or that she was under any restraint or duress at the time of the execution of this agreement. No claim is made by her that the agreement was obtained through fraud or duress, and it appears that she was fully advised of the exact financial condition of her husband at the time she executed the paper. For some weeks the matter had been under negotiation between the plaintiff and
To hold this contract inequitable and to relieve the plaintiff from the consequences of a contract negotiated and entered into as was that in the present case, would be to do violence to all judicial precedent under similar circumstances.
The findings of the trial court at variance with the views hereinbefore expressed should be disapproved, and the judgment of the court below reversed, with costs to the appellant, and defendant should have judgment upon the merits dismissing plaintiff’s complaint, with costs.
Clarke, P. J., Latjghlin and Smith, JJ., concur.
Judgment reversed, with costs, and judgment ordered for defendant dismissing the complaint on the merits, with costs. Settle order on notice.