Lacks v. Lacks

• Decision Date: 26 October 1972
• Citation: 336 N.Y.S.2d 874,39 A.D.2d 485
• Parties: Harold G. LACKS, Plaintiff-Respondent, v. Irene R. LACKS, Defendant-Appellant, United States of America et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 874

336 N.Y.S.2d 874

39 A.D.2d 485

Harold G. LACKS, Plaintiff-Respondent, v. Irene R. LACKS, Defendant-Appellant, United States of America et al., Defendants.

Supreme Court, Appellate Division, First Department.

Oct. 26, 1972.

Eleanor Jackson Piel, New York City, of counsel (Milton H. Friedman, New York City, with her on the brief), for defendant-appellant.

Samuel Gottlieb, New York City, of counsel (Eugene H. Feldman, New York City, with him on the brief; Gainsburg, Gottlieb, Levitan & Cole, New York City, attorneys), for plaintiff-respondent.

Before McGIVERN, J.P., and MARKEWICH, KUPFERMAN, STEUER and MACKEN, JJ.

MACKEN, Justice.

At issue is the validity of a judgment in favor of plaintiff-respondent (hereafter plaintiff) against defendant-appellant (hereafter defendant), foreclosing a mortgage on a town house in Manhattan owned by defendant. Married in 1938, the parties have been engaged in litigation of one sort or another since 1953, and since entry of the judgment herein have been divorced. The property which is the subject of this action had been held by the parties as tenants by the entirety. In 1959 they executed an agreement providing in part:

'Third: Harold agrees that promptly upon the execution of this agreement, that he will sell, assign, transfer and deed over to Irene, all of his right, title and interest in and to the premises and furniture and furnishings now owned in common by the parties and known by the street number 34 East 69th Street, New York City. Said premises are currently subject to a mortgage in the approximate sum of $50,000. Harold agrees that he will upon the due date of said mortgage or at any time before in his discretion, pay and discharge the principal sum of said mortgage and until said mortgage has been paid and discharged, that he will pay all interest charges thereon.

'* * *s d

'Seventh: In consideration of the sale and transfer by deed of Harold's interest in the said premises * * * and in further consideration of his undertaking to pay and discharge the existing mortgage thereon, Irene agrees that upon the execution and delivery to her by Harold of a deed conveying to her * * * the premises 34 East 69th Street, New York City, that she will at that same time and hereby does assign, transfer and set over to Harold, all of her right, title and interest in and to all shares of stock of Island Industries, Inc., including any and all interest she has or may have in and to any and all shares of stock of Island Rubber Corp., or any beneficial interest therein which she now has or had at any time.'

Paragraph Fourth of the agreement provided in part:

'It is further agreed * * * that unless and until Irene shall at any time hereafter institute a legal proceeding against Harold for separation or divorce, that he will pay to her for her personal use and maintenance of every kind, except as herein otherwise provided, the sum of $30,000 per annum, payable monthly. Harold further agrees, that in addition, he will pay all real estate taxes assessed against the said premises 34 East 69th Street * * * so long as they are owned by Irene.'

Early in 1960 the parties executed an agreement modifying the 1959 agreement by substituting a new paragraph 'Fourth' inter alia increasing the annual payment to defendant to $37,500. The provision for payment of taxes on the 69th Street property remained the same. In October of 1960 the defendant commenced an action against the plaintiff, seeking in addition to other relief, reformation of certain portions of the agreements on the ground of fraud or mutual mistake. On appeal from denial of a motion to dismiss a portion of the complaint in that action it was urged by the present plaintiff that the agreements, insofar as they related to payments for his wife's support, were in violation of the then Section 51 of the Domestic Relations Law (now Section 5--311 General Obligations Law). In affirming the denial (Lacks v. Lacks, 12 N.Y.2d 268, 271, 238 N.Y.S.2d 949, 950, 189 N.E.2d 487, 488) Judge Van Voorhis, writing for the majority, said:

'The husband contends, on this appeal, that an agreement by a husband in void to pay an annual sum to the wife in lieu of her support and maintenance while they are living together as husband and wife. That contention is correct. (Garlock v. Garlock 279 N.Y. 337, 18 N.E.2d 521). * * * Consequently the third cause of action would be insufficient in law if it concerned merely the reformation of this clause in the agreements. It is difficult upon a motion of this character to determine whether this portion of these contracts is so integral a part of them as to vitiate them in their entirety. If this clause be severable, it is possible that other paragraphs in the agreements may be capable of reformation in the manner applied for by plaintiff on other aspects of the third cause of action. Whether these agreements are divisible in this respect, with the consequence that this void portion would be severable, or whether the contracts are entire, is a matter to be decided after a trial rather than upon a motion addressed to the pleadings.'

The latter action has not been brought to trial.

Pursuant to the agreements plaintiff conveyed his interest in the house to defendant and the latter transferred her shares of stock to plaintiff. Plaintiff made the mortgage payments and paid the taxes until January of 1963 at which time he apparently paid the balance due on the mortgage but took an assignment thereof instead of discharging it. Thereafter, he paid no taxes and in 1966 commenced this action to foreclose the mortgage, alleging defendant's failure to pay the installments of principal and interest due January 1, 1963 and thereafter, and the taxes assessed against the property. As a defense and counterclaim, defendant alleged the agreements of 1959 and 1960 and asked judgment 'dismissing the complaint, that defendant be required...