Bregoff v. Rubien

Decision Date20 December 1960
PartiesIsidor BREGOFF, Plaintiff-Respondent, v. Abner J. RUBIEN, Defendant-Appellant.
CourtNew York Supreme Court — Appellate Division

Edward A. Winkelman, New York City, of counsel (Winkelman & Winkelman, New York City, attorneys), for defendant-appellant.

Charles H. Tuttle, New York City, of counsel (Marshall L. Rosenberg, New York City, attorney), for plaintiff-respondent.

Before BREITEL, J. P., and RABIN, VALENTE, EAGER and NOONAN, JJ.

PER CURIAM.

The predicate of plaintiff's suit is a settlement agreement dated May 10, 1946 wherein defendant contracted to pay $25,000 to satisfy a judgment, for a much larger amount, which had been obtained against him by plaintiff in an accounting action. Under that agreement, a copy of which is annexed to the amended complaint, defendant paid $4,000 down, and as to the balance of $21,000, defendant agreed as follows:

'The Debtor, by these presents, does hereby assign, transfer and convey to the Creditor, Fifty (50%) Per Cent of his net income from his regular occupation in excess of Fifteen Thousand ($15,000.00) Dollars, after payment of State and Federal Income Tax. The Debtor, by these presents, further assigns to the Creditor, Fifty (50%) Per Cent of all of the said Debtor's income received by said Debtor from all sources other than his regular occupation.'

In the fourteen years since the agreement was made, defendant paid under that formula the sum of $17,000, leaving a balance of $8,000. Plaintiff alleges that in 1959 defendant became the beneficiary of a 25% interest in the estate of his father, who died a resident of Wisconsin on February 3, 1959; and that defendant received from the executors of the father's estate securities of a value of $46, 265.08 and cash of $7,774.46.

Claiming that said securities and money were 'income' received by defendant from sources other than his regular occupation, plaintiff demanded that defendant pay therefrom the balance of $8,000 due under the settlement agreement. Upon failure of defendant to comply with that demand, plaintiff--pursuant to paragraph 'Seventh' of the settlement agreement--declared defendant to be in default, and commenced this suit to recover $94,997.75, the balance due under the original judgment.

The sole question--determinative of the motion to dismiss--is whether under any reasonable interpretation of the contract of settlement the provision for the application of 50% of the defendant's 'income received by said Debtor from all sources other than his regular occupation' included an inheritance received from defendant's father.

We commence with the settled doctrine that a court will not make a new contract for the parties under the guise of interpreting the agreement actually made (Heller v. Pope, 250 N.Y. 132, 135, 164 N.E. 881, 882; Cream of Wheat Co. v. Arthur H. Crist Co., 222 N.Y. 487, 493-494, 119 N.E. 74, 76, 1 A.L.R. 150). The contract does not expressly provide for the payment of any installment from any inheritance or from any gifts which defendant may receive. That omission may not be remedied by indirectly incorporating such a provision through a process of construing a formula for installment payments, which interchangeably equates 'income' with 'earnings', as including the omitted categories. Our function is to construe the contract that was made and not to construct a new one. Ambiguity may not be imported, where none exists, for the purpose of extending the terms of a contract to include matters not specifically mentioned[12 A.D.2d 94] --whether deliberately omitted or done so inadvertently through lack of prescience. *

The fact that the word 'income' may have a flexible connotation, as distinguished from principal in trust cases (Equitable Trust Co. v. Prentice, 250 N.Y. 1, 11, 164 N.E. 723, 725, 63 A.L.R. 263); as defined in tax statutes (Gavit v. Irwin, D.C., 275 F. 643); or as broadly used in section 793 of the Civil Practice Act, does not make the term ambiguous in the agreement before the Court. The word may not be read in isolation but its meaning must be derived from the context of the agreement.

Plaintiff would have the agreement construed so that the word 'income' would include all receipts...

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7 cases
  • Seiden Associates, Inc. v. ANC Holdings, Inc.
    • United States
    • U.S. District Court — Southern District of New York
    • July 8, 1991
    ...reach an artificial interpretation in order to relieve a party from an improvident bargain"); Bregoff v. Rubien, 12 A.D.2d 92, 93-94, 208 N.Y.S.2d 348, 350 (1st Dep't 1960), aff'd, 10 N.Y.2d 763, 219 N.Y.S.2d 611, 177 N.E.2d 52 (1961) ("Ambiguity may not be imported, where none exists, for ......
  • New York State Elec. & Gas Corp. v. State
    • United States
    • New York Supreme Court — Appellate Division
    • August 3, 1995
    ...Kushlin v. Bialer, 32 A.D.2d 217, 301 N.Y.S.2d 181, appeal dismissed 26 N.Y.2d 748, 309 N.Y.S.2d 47, 257 N.E.2d 293; Bregoff v. Rubien, 12 A.D.2d 92, 208 N.Y.S.2d 348, affd. 10 N.Y.2d 763, 219 N.Y.S.2d 611, 177 N.E.2d 52). As the contract gave the specific remedy to the State but not to cla......
  • Dobbins v. Dobbins
    • United States
    • New York Supreme Court — Appellate Division
    • August 8, 1977
    ...his business expenses directly related to the production of that income, the agreement would have so provided (see Bregoff v. Rubien, 12 A.D.2d 92, 94, 208 N.Y.S.2d 348, 350, affd. 10 N.Y.2d 763, 219 N.Y.S.2d 611, 177 N.E.2d 52). Since the parties did not so provide, they must be bound by t......
  • Mohr-Lercara v. Oxford Health Ins.
    • United States
    • U.S. District Court — Southern District of New York
    • February 22, 2022
    ... ... isolation”; instead, “its meaning must be derived ... from the context of the agreement.” Bregoff v ... Rubien , 12 A.D.2d 92, 94 (1st Dep't 1960), ... aff'd., 10 N.Y.2d 763 (1961) ... It is ... also “a ... ...
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