Opinion
June 23, 1947.
In an action for separation brought by the wife, the complaint was dismissed at the close of plaintiff's case on the ground that an agreement made before marriage not to have children was contrary to the public policy of this State. Assuming the agreement was made, such agreement is against public policy ( Mirizio v. Mirizio, 242 N.Y. 74), but it is not a bar to plaintiff's right to maintain this action. ( Mirizio v. Mirizio, 248 N.Y. 175.) Plaintiff made out a prima facie case. Judgment dismissing the complaint, insofar as appealed from, reversed on the law, with costs to appellant, and a new trial granted. For the purposes of a new trial, findings of fact are reversed and conclusions of law disapproved. Appeal from order denying motion to reopen the case dismissed, without costs. Hagarty, Acting P.J., Carswell, Johnston, Adel and Sneed, JJ., concur.