Smith v. Smith , 349 N.Y.S.2d 874 ( 1973 )

Judgment unanimously modified, on the law and facts, in accordance with memorandum and as modified affirmed, without costs. Memorandum: While the court properly granted plaintiff judgment for divorce and dismissed defendant’s cause of action for separation it was in error in modifying paragraph 5 of the separation agreement of the parties by increasing the amount of support and maintenance to be paid by plaintiff to defendant from $50 to $75 per week. The courts have consistently followed the holding in Galusha v. Galusha (116 N. Y. 635) that an agreement entered into by the parties which provides for the support and maintenance of the wife, unless set aside or impeached, precludes any other or further provision for support by the court, unless the wife is actually unable to support herself on the amount provided for her and is in actual danger of becoming a public charge (see McMains v. McMains, 15 N Y 2d 283). No such allegation or showing is made here. In striking out that provision of the judgment which modifies paragraph 5 of the agreement by increasing support payments, we likewise would strike that provision modifying paragraph 5 which deletes the plaintiff’s responsibility for maintaining hospital and medical insurance for defendant. The court having found that the defendant failed to establish her defense of fraud in the inception of the separation agreement and also that the plaintiff has substantially performed all the terms and conditions of the agreement, defendant is not entitled to counsel fees (Schmelzel v. Schmelzel, 287 N. Y. 21). (Appeal from judgment of Erie Trial Term in divorce action.) Present — Del Vecchio, J. P., Marsh, Witmer, Cardamone and Henry, JJ.