Summary
In Reardon v. Woerner (111 App. Div. 259), wherein a separation was upheld, the parties had already separated when the agreement was made, and there was a trustee who undertook to indemnify the husband.
Summary of this case from Sunderlin v. SunderlinOpinion
March 2, 1906.
Joab H. Banton, for the appellant.
W. Coleman Hughes, for the respondents.
It is too well known among us that such a contract has long been held to be valid to call for the citation of authority.
It has of late been held, however, in the case of Carling v. Carling ( 42 Misc. Rep. 492) that the provision at the end of section 21 of the Domestic Relations Law (Laws of 1896, chap. 272), that "a husband and wife can not contract to alter or dissolve the marriage, or to relieve the husband from his liability to support his wife," changes the law and makes such a contract illegal, in that it may secure to a wife less than she might be able to get by going to law, and relieve the husband of his liability to that extent. I do not see how we can acquiesce in this view. Substantially the same provision is to be found in chapter 594 of the Laws of 1892, which amends the act of 1884 (Chap. 381) in relation to the rights and liabilities of married women, and such an effect was never claimed for it. It is quite manifest that the Legislature had no such intention.
The contention that only a suit in equity, and not an action at law, can arise upon the contract, and that the court below was without jurisdiction inasmuch as it has no jurisdiction of suits in equity, has no foundation.
The judgment is affirmed, with costs.
HIRSCHBERG, P.J., WOODWARD, JENKS and HOOKER, JJ., concurred.
Judgment of the Municipal Court affirmed, with costs.