Maney v. Maney , 104 N.Y.S. 541 ( 1907 )

Chester, J.:

It appears very clearly by the affidavits before the court upon the . .application for'the interlocutory judgment-that at the time of the execution of the separation agreement between the plaintiff and ■ defendant they were «living together as, husband- and wife,, and that after' the execution of such agreement and pursuant- to «the terms thereof, they separated and have ever since lived apart from each other. "The agreement was made • without the intervention of a trustee. • Mo reason is given for the separation in the agreement,, except a statement therein that differences have arisen- between them for which reason they have consented and agreed to live separate and apart from each other during their natural fives. The ■ agreement under the authorities was void, and, consequently, did-not stand in the Way of the court making proper provision, for the ' - support and maintenance of the wife in the interlocutory judgment,' for the reason that it -was made directly'between the husband, and wife, before they had separated, and expressly-for the purpose'of bringing about a separation; (Poillon v. Poillon, 49 App. Div. 341; Tallinger v. Mandeville, 48 Hun, 152 ; Whitney v. Whitney, 4 App. Div. 597:)

The appellant, is not aided by the provisions of section 21 of the Domestic Delations Law -(Laws of 1896, chap. 272), enlarging the ■ rights of a married woman .and authorizing her to make contracts in • respect to-'her property with any person,, including her kusbapd, for ■ the reason that such section in express terms prohibits a husband ' and wife from contracting to alter or dissolve the marriage between them or to-relieve the husband from his liability to support-his wife.

In Poillon v. Poillon (supra) it is said, with, reference to said section 21 and to a contract like the one under consideration here: “ It needs no' discussion to show that this contract is essentially one to alter the marriage relation. It relieves the parties from the duty of living together, which the marriage relation imposes upon them, and tends to relieve the husband from the support of liis wife, and so far as it had these ends in view it' is directly contrary to the section above.”

The authorities cited by the appellant are not contrary to this view, for they were either cases where the' separation existed as a fact before the agreement was entered into or where there was an intervention of a trustee, so the contract was not directly between the husband and wife. ■

We think, too, that the defendant was properly required to give security for the payment of the alimony. Under section 1772 of the Code of Civil Procedure that was a matter resting entirely in the discretion of the court, and such discretion was properly exercised in this case.

The interlocutory judgment should be affirmed, with costs.

All concurred, except Coohbane, J., not' voting. ‘

Interlocutory judgment affirmed, with costs.'