Lacks v. Lacks

• Decision Date: 28 February 1963
• Citation: 189 N.E.2d 487,238 N.Y.S.2d 949,12 N.Y.2d 268
• Parties: , 189 N.E.2d 487 Irene R. LACKS, Respondent, v. Harold G. LACKS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 949

238 N.Y.S.2d 949

12 N.Y.2d 268, 189 N.E.2d 487

Irene R. LACKS, Respondent, v. Harold G. LACKS, Appellant.

Court of Appeals of New York.

Feb. 28, 1963.

Monroe J. Cahn and Herbert S. Greenberg, New York City, for appellant.

Irving I. Erdheim and Fred Lichtblau, New York City, for respondent.

VAN VOORHIS, Judge.

In an endeavor to compromise marital differences and to adjust property interests, these parties entered into an agreement on December 17, 1959, which was modified by a supplemental agreement on April 22, 1960. This appeal, under the certified question, concerns solely whether the third cause of action is sufficient in law. Except as hereafter stated, the objections by appellant to the sufficiency of the third cause of action in the complaint relate to matters of evidence rather than pleading. That cause of action asks for reformation of these agreements in many respects, including reformation of paragraph 'FOURTH' of the second agreement, which, in turn, revised paragraph 'FOURTH' of the original agreement. This paragraph is challenged by appellant as being void as against public policy. It originally provided for the payment of $30,000 per annum by the husband to the wife 'for her personal use and maintenance' unless and until the wife should institute a legal proceeding against the husband for separation or divorce. The amount was increased to $37,500 by the amending agreement and this provision is sought to be varied in other respects by the reformation which is asked under the third cause of action. The husband contends, on this appeal, that an agreement by a husband is 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, 120 A.L.R. 1331). Reformation is not granted of void provisions in contracts, nor are contracts reformed by fashioning them so that they will become void (Reynolds Metals Co. v. Metals Disintegrating Co., 3 Cir., 176 F.2d 90; 76 C.J.S. Reformation of Instruments § 11, p. 336; Metcalf v. Metcalf, 274 App.Div. 744, 87 N.Y.S.2d 122). 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. If any portion of a cause of action is sufficient, it should not be dismissed on motion (Abrams v. Allen, 297 N.Y. 52, 74 N.E.2d 305, 173 A.L.R. 671). Without determining the severability of this void clause at this stage in the litigation, the order appealed from should be affirmed, without costs, and the certified question answered in the negative.

DYE, Judge (concurring).

In concurring for affirmance, I would like to point out that nothing in the language of the contracts sought to be reformed purports 'to relieve the husband from his liability to support his wife' (Domestic Relations Law, Consol.Laws, c. 14, § 51); nor is there anything purporting to provide for future support of the wife in the event of and contingent upon a later separation of the parties or a dissolution of the marriage, either of which contingencies would be repugnant to settled public policy (Galusha v. Galusha, 116 N.Y. 635, 22 N.E. 1114, 6 L.R.A. 487). These contracts, by their express terms, make it clear that the parties were dealing with and intended to reconcile marital differences that threatened continuance of the marriage relation, a purpose which we have always approved and encouraged (Rodgers v. Rodgers, 229 N.Y. 255, 128 N.E. 117, 11 A.L.R. 274), the settlement of recognized separate interests in community property, and the husband's responsibility to his wife as an individual, by all of which considerations the parties recognized and sought to implement the beneficent social concept underlying section 51.

To remove any doubt that these agreements meant anything other than what the parties said in the plainest of language and were in fact merely a subterfuge to avoid the husband's support liabilities imposed by section 51, it was expressly provided that, if and when the wife instituted legal proceedings to alter or dissolve the marriage, the husband was to be relieved of further payments under the contracts and the wife was to have 'the right in any such legal proceeding to assert all of her marital rights against Harold (the husband) for support and maintenance as any court having jurisdiction over such proceeding may therein determine'. Our holding in Garlock v. Garlock, 279 N.Y. 337, 18 N.E.2d 521, 120 A.L.R. 1331, should not now be enlarged as meaning more than it decided so as to render unenforcible a contract such as this made between a husband and wife while living together. In Garlock the contract deemed unenforcible provided in so many words that the payments by the husband 'shall be in lieu of and in release of any and all obligations which the party of the first part (the husband) otherwise has or shall have to support and maintain party of the second part', which provision was exactly contrary to the present situation. Nor is this case at all similar to Haas v. Haas, 298 N.Y. 69, 80 N.E.2d 337, 4 A.L.R.2d 726, where the agreement also provided for the complete release of the husband's support liabilities in the event his wife engaged in the retail linen business. In light of our former decisions it seems clear that these contracts are not at all repugnant to section 51. By their express terms the agreements do not purport and may not be read as relieving the husband of his support liabilities either presently or in the future. Furthermore, this being an action to reform, nothing turns on the circumstance that some of the items might otherwise come within the bar of the Statute of Frauds, since it is a well-established rule that neither the statute nor the parol evidence rule forbids reformation of a written contract to include material orally agreed upon, but, because of mutual or unilateral mistake plus fraud, not inserted in the writing (Brandwein v. Provident Mut. Life Ins. Co., 3 N.Y.2d 491, 168 N.Y.S.2d 964, 146 N.E.2d 693).

The pleading on its face is sufficient. If the plaintiff proves that the alleged matters orally agreed upon were not included in the writings by reason of mutual or unilateral mistake plus fraud, then she is entitled to reformation.

The order appealed from should be affirmed, with costs, and the question certified should be answered in the negative.

FULD, Judge (concurring).

Entertaining the same view as does Judge DYE, I perceive no basis for invalidating any provision of the agreement before us.

In her complaint, the plaintiff alleges that there had been a long history of matrimonial discord which culminated in her institution of separation actions against the defendant based on his assertedly cruel and inhuman treatment; that she was induced to discontinue these actions upon the defendant's promise and assurance that his conduct would change and that he would adequately provide for her support and maintenance and that of their two children; that they thereafter entered into an agreement providing both for a property settlement and the payment of a stated sum for her support while they were living together. ¹

Section 51 of the Domestic Relations Law, which provides that a husband and wife 'cannot contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife', renders illegal an...