Butler v. Marcus
| Decision Date | 23 March 1934 |
| Parties | Gladys BUTLER, Respondent, v. Chapin MARCUS, Appellant. |
| Court | New 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: * * *'
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.
Judgment affirmed, with costs; no opinion.
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