63 N.J. Eq. 124 | New York Court of Chancery | 1901
The bill of complaint in this case is based upon a written agreement for separation and support, entered into between the
The undisputed proofs sustain the allegations of the bill.
I am unable to see any distinction between the case here stated and proved and the case of Aspinwall v. Aspinwall, reported in 4 Dick. Ch. Rep. 304. The court of appeals in thát case unanimously held that stipulations of this character for the support of the wife have always been regarded as enforceable in a court of equity in this state, and affirmed a decree adjudging that the moneys stipulated for should bo paid by the husband for the use of the wife, together with her costs.
The defendant sets up the defence of a hard bargain, and objects that a court of equity will not specifically enforce such a contract. Such a defence was rejected by the court of appeals in Buttlar v. Buttlar, 12 Dick. Ch. Rep. 645, where the wife sought to enforce a like contract for her support. In the present case defendant, by his answer, admits facts which show that the contract, when made, was neither hard nor unconscionable in the obligations it imposed upon the -husband. lie seeks to avoid it by showing, that after the making of the contract and performance of it for several years, he has, because of business competition and misfortune, become financially incapable of continuing its performance. The offer was overruled as no defence.
Following the rule laid down in the Aspinwall, Case, I will advise a decree in favor of the complainant.