Butler v. Marcus

Decision Date23 March 1934
Citation264 N.Y. 519,191 N.E. 544
PartiesGladys BUTLER, Respondent, v. Chapin MARCUS, Appellant.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from a judgment, entered July 5, 1933, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (239 App. Div. 912, 265 N. Y. S. 951), which affirmed a judgment in favor of plaintiff entered upon an order of Special Term granting a motion by plaintiff to strike out the answer of the defendant and for summary judgment in favor of plaintiff for the relief demanded in the complaint, and which also affirmed an order of Special Term denying a motion by defendant for an order dismissing the complaint which alleged that on December 27, 1927, while the plaintiff and defendant were husband and wife and living separate and apart, they entered into a separation agreement, that defendant had failed to pay the plaintiff the stated sums agreed to be paid to her during certain months, and demanded judgment for such installments. The agreement contained the following provision: ‘Eighth. In the event that the parties on December 31, 1928, are still united in the bonds of matrimony it is mutually agreed that all the foregoing terms, covenants and agreements shall cease to be binding upon either of the parties for any purpose and they shall be at liberty to readjust their differences. If either party at that time shall have obtained an absolute divorce from the other, then all of the foregoing covenants and agreements shall continue in full force and effect. * * *'

On May 15, 1928, plaintiff obtained a decree of divorce in the state of Nevada. The answer, in addition to a general denial, set up as a defense that at the time of the making of the agreement there was no action for a divorce or separation pending between the parties, that the agreement was contingent upon severance of the marriage relationship existing between the parties, and was therefore void as against public policy, and that it was also void as an agreement attempting to alter and dissolve the marriage then existing between the parties in violation of section 51 of the Domestic Relations Law (Consol. Laws, c. 14).Herbert C. Smyth, William M. Butler, and Frederick W. Bisgood, all of New York City, for appellant.

Archibald R. Watson, Isidor Blum, and Hyman W. Gamso, all of New York City, for respondent.

PER CURIAM.

Judgment affirmed, with costs; no opinion.

POUND, C. J., and CRANE, LEHMAN, O'BRIEN, HUBBS, and CROUCH,...

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    • United States
    • California Court of Appeals Court of Appeals
    • March 4, 2013
  • In re Rhinelander's Estate
    • United States
    • New York Court of Appeals Court of Appeals
    • March 4, 1943
    ...than to apply that section, and its policy, to agreements which have a direct tendency toward dissolving marriages. In Butler v. Marcus, 264 N.Y. 519, 191 N.E. 544, the husband and wife, while living apart, made an agreement whereby a generous amount for the wife's support was to be paid mo......
  • Howland v. Stitzer
    • United States
    • North Carolina Supreme Court
    • October 8, 1952
    ...York. In re Rhinelander's Estate, supra; Graham v. Hunter, 266 App.Div. 576, 42 N.Y.S.2d 717; Goldman v. Goldman, supra; Butler v. Marcus, 264 N.Y. 519, 191 N.E. 544; West v. Burke, 165 App.Div. 667, 151 N.Y.S. 329, affirmed 219 N.Y. 7, 113 N.E. 561; Hamlin v. Hamlin, 224 App.Div. 168, 230 ......
  • Fitzgerald v. Morgenstern
    • United States
    • New York City Court
    • November 8, 1965
    ...be cancelled, and null and void ab initio. * * *' The defense, asserting this provision to be invalid, must be stricken. (Butler v. Marcus, 264 N.Y. 519, 191 N.E. 544; see Matter of Rhinelander's Estate, 290 N.Y. 31, 47 N.E.2d 681.) The separation agreement was dated and executed on April 1......
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