Murphy v. Murphy

Katzenstein, J.

This is a motion to dismiss a counterclaim of $450, interposed by a husband against his wife. The wife’s action is one to enforce the payment of alimony pursuant to a separation agreement, there having been a default in á monthly payment of $300. The defendant does not deny the separation agreement or that the amount sued for is correct, but contends for the proposition that his counterclaim is properly pleaded to diminish the amount of the plaintiff’s recovery. The plaintiff had given her promissory note to a third party. The defendant claims to have purchased the promissory note and to have been the holder thereof prior to the date of the separation agreement and continuously thereafter.

The counterclaim is improper in view of section 266 of the Civil Practice Act and the rules of substantive law in regard to separation agreements. A recovery by the husband on his attempted counterclaim cannot diminish the amount of his wife’s recovery since the money due her is necessary for her proper support and maintenance and less than this the husband cannot give her. The court cannot ignore the particular attributes of this type of contract and deal with it merely as an ordinary contract.

A husband has the duty to support his wife which ends only with death, desertion or misconduct. The law, however, permits, in certain cases, an agreement of separation wherein the parties affix a sum as suitable and proper for the wife’s support. This being so, the husband may not, under any pretext, deprive the wife of that which is her support.

The other points raised on this motion do not require a ruling in view of the above.

Motion to strike out the answer and to dismiss the counterclaim is granted, with ten dollars costs.