Greenleaf v. Blakeman , 56 N.Y.S. 76 ( 1898 )

Pryor, J.

The action is by the trustee in a separation agreement, to enforce the specific performance of a stipulation by the husband to secure the payment of an annual allowance to his wife. The stipulation is, that “ such payments shall be secured, either by bond of sufficient security, individual or corporate, or by collateral security of suitable character and in market value not less than $70,000, placed in the hands of the party of the third part or his successor in trust, within six months from the execution and delivery hereof.”

In the renunciation by the wife of all interest in her husband’s estate and of all right to maintenance and support, the contract exhibits an ample consideration. Calkins v. Long, 22 Barb. 97, 100.

The omission of an indemnity by the trustee against the wife’s debts is of no consequence, since the law itself imports such indemnity. Calkins v. Long, 22 Barb. 97, 100.

Misconception of the legal effect of the agreement is no obstacle to its specific enforcement. Pomeroy on Specific Performance, § 293; Fry on Specific Performance, § 733.

The agreement is absolutely unequivocal, and in fact was not misunderstood by the defendant husband. Even if he made the contract solely out of solicitude for his mother — an inference repelled by the tenor of the negotiation — the fact would not impair the obligation to the wife. The agreement was the result of a cautious and protracted treaty, in which the husband’s interests were protected by the vigilance and fidelity of competent counsel, in every stage of which his own judgment and wishes were consulted, and in the provisions of which I detect no feature of unfairness or oppression.

It is an agreement of which the specific performance will be decreed. Anderson v. Anderson, 1 Edw. Ch. 380; Champlin v. Champlin, 1 Hoff. Ch. 55; Aspinwall v. Aspinwall, 49 N. J. Eq. 302; Calkins v. Long, 22 Barb. 97, 109; Pomeroy on Specific Performance. § 22.

Unquestionably, to be susceptible of specific performance, a contract must be “ reasonably certain in its stipulations ” (Stokes v. Stokes, 148 N. Y. 708); and, as intimated on the argument, J. doubted whether the engagement, being in the alternative, may be enforced in equity. But, in Smith v. Rector, 107 N. Y. 610, the agreement was to sell or lease; and the court nevertheless decreed its performance, saying (page 621): “ The contract binds the defendant either to pay such value, or execute a new lease. It is bound to perform its contract by availing itself of one or the other of these alternatives.”

Still, in the case at bar it is a question if the alternatives be so certain and definite as to authorize the enforcement of either.

As to the first, namely, a “ bond of sufficient surety, individual or corporate,” it remains to determine the character and sufficiency of the surety. Whether the surety shall be an individual or a corporation may be left to the option of the defendant husband; whether the surety be sufficient the court will decide. Joy v. St. Louis, 138 U. S. 1, 43. The other alternative I conclude to be too indefinite and uncertain for specific .enforcement. The stipulation is for “ collateral security of suitable character.” In Ladd v. Stevenson, 43 Hun, 541; affd., 112 N. Y. 325, an engagement for “ satisfactory security ” was considered as impracticably vague.

The second alternative being void for uncertainty, the court will decree performance of the first. Pomeroy on Specific Performance (2d ed.), note to § 299, bottom page 389; § 300, bottom page 390; Fry on Specific Performance, § 990. Indeed, supposing both alternatives valid and enforceable, by the husband’s refusal to perform either, an election between them devolved to the plaintiff, and he may demand a bond instead of collaterals. Bishop on Contracts, §§ 785, 786,1435.

Judgment for plaintiff, as indicated, with costs.

Judgment for plaintiff, with costs.