Lawsberg v. Lawsberg

Howard, J.:

The parties are husband and wife. Differences having arisen between them, the wife brought suit for separation, the venue being laid in Westchester county. This action was subsequently compromised and settled and a written separation agreement was entered into. One of the conditions of this agreement was that the husband was to pay to the wife $2,400 annually for the support of herself and daughter, payable monthly, $200 on the first day of each month. The husband having failed to pay several of these monthly installments this action was brought by the wife to recover the same.

There were two children of the marriage, a son and a daughter. By the terms of the separation agreement the custody of the daughter was given to the mother, but the father was to be permitted to have the daughter in his custody for a day at a time at such dates and places as might be agreed upon. The separation agreement was made April 12,1913, but for one reason or another, and based upon various excuses, the plaintiff managed to prevent the defendant from seeing the daughter at all after the day of the contract. The defendant made his monthly payments regularly until January 1, 1914, at which time, reaching the conclusion apparently that the plaintiff intended to, and in fact had, repudiated the agreement, he refused to make any further payments. On February 25, 1914, the plaintiff began an action in Kings county for a separation. One of the conditions of the separation agreement was that she was not to bring any action based upon the acts alleged in the first action. The parties had not lived together since the institution of the first action, so that it follows from the nature of the allegations in the second action that it was based upon the same acts alleged in the first action. In the complaint in the second action she demanded the custody of both children, and afterwards she applied to the court for alimony and counsel fee. The alimony was denied but a $250 counsel fee granted. In September following the plaintiff began this action. At the close of the plaintiff’s case the defendant moved for a dismissal of the complaint. This was denied. The defendant introduced no evidence and the case went to the jury, and a verdict was rendered for the full amount of the unpaid installments.

In considering the motion for a nonsuit the question arises whether the action on the separation agreement can be maintained. We think it cannot. Whatever may be the merits of the controversy, as to the failure of the plaintiff to permit the defendant to see his daughter, it is apparent that the defendant, being exasperated, finally concluded to repudiate the agreement. And it is equally apparent that the plaintiff considered that he had repudiated it. Being convinced of this the plaintiff acquiesced in the repudiation and fell back upon her marital rights. That is, recognizing that she could not obtain redress upon both contracts, the separation agreement and the marriage contract, she abandoned the former and chose, the latter. Randolph v. Field (165 App. Div. 279) is a case exactly in point. There the court said: “The institution of that action [a separation action] by her was, I think, in legal effect, not only an assent to the repudiation by the defendant, but a repudiation of it upon her part. Her election was further indicated by her acceptance of a counsel fee of two hundred and fifty dollars * *

The separation agreement being dead as a result of its repudiation by both parties, it follows that no action can be based upon it. Therefore, the nonsuit should have been granted.

The judgment and order appealed from should be reversed and the complaint dismissed, with costs.

All concurred, except Kellogg, P. J., dissenting in opinion, in which Woodward, J., concurred.