Stoddard v. Stoddard

Decision Date15 July 1919
Citation227 N.Y. 13,124 N.E. 91
CourtNew York Court of Appeals Court of Appeals


Appeal from Supreme Court, Appellate Division, First Department.

Action by John M. Stoddard against Maude R. Stoddard. A judgment denying defendant's motion for judgment on the pleadings was reversed by the Appellate Division, which granted such motion (187 App. Div. 258,176 N. Y. Supp. 636), and plaintiff appeals by permission. Affirmed.

See, also, 187 App. Div. 279,175 N. Y. Supp. 650; 175 N. Y. Supp. 923.

Frederick E. Anderson, of New York City, for appellant.

A. M. Wattenberg, of New York City, for respondent.


The plaintiff and defendant, being husband and wife and then living apart, several years ago entered into a separation agreement which has been assumed to be valid. It contained many provisions of the general character usually found in such an agreement, and amongst them those to the effect that plaintiff each month should pay to the defendant the sum of $700, $500 to be used for her own support and maintenance and $200 to be expended by her for the support and maintenance of two children. In addition to these usual provisions it contained an unusual one which read as follows:

‘In the event that there should be any material change in the circumstances of either of the parties hereto, either party hereto shall have the right to apply to any court of competent jurisdiction for a modification of the provisions herein regarding the amounts to be paid hereunder by the party of the first part (the husband) to the party of the second part hereto (the wife).’

After making the payments provided in said agreement for several years, plaintiff brought this action, wherein, in addition to allegations of a formal nature and concerning the sufficiency of which no question arises, he alleged in substance that his income had become greatly impaired and that of his wife considerably increased; that he was no longer able to make the payments in the agreement provided and had attempted to procure his wife to accept those of a lesser amount, but that she had refused so to do, insisting that she would bring actions from month to month to enforce payment of the sums mentioned in the agreement, and that in fact she had already brought one or more of such actions. The separation agreement was set forth in full, and upon the allegations stated and in reliance upon the clause which has been quoted he, in substance, prayed relief that the amount required by him to be paid under the original terms of the agreement might be reduced in amount, and, if the court should determine that it was without jurisdiction to grant this relief, that it might be adjudged that the separation agreement was no longer in force, and the defendant be enjoined from prosecuting any action thereunder against the plaintiff.

By demurrer the defendant has presented the question whether this complaint states a cause of action, and with the answer given by the order appealed from that it does not we agree.

Originally there seems to have been considerable uncertainty and debate concerning the character to be ascribed to this action, as bearing on the right of plaintiff to maintain it. Our consideration, however, is freed from the necessity for much of this discussion by the concessions now made and the position now assumed by the plaintiff.

It is conceded, as it undoubtedly otherwise must have been held, that this is not a matrimonial action, or in the nature of a matrimonial action, under the provisions of the Code, to have the court decree a separation and fix an amount for the support and maintenance of the wife. The most cursory examination of the allegations of the complaint also shows that it was not brought as an action to have the agreement set aside as vitiated by fraud or misunderstanding, and that it is not an action to have the instrument so reformed as to conform to an agreement actually made by the parties but through mistake not properly reduced to writing.

The plaintiff adopts as its character that of an action to enforce specific performance. He says that the contract comprehends the agreements:

(1) ‘That upon a material change in the circumstances of either party the particular allowance specified in the contract shall no longer be paid.’ (2) ‘That from thenceforth the plaintiff should pay and defendant should accept such amount as the court should (ought to) prescribe according to its course and practice in matrimonial actions, having in view the resources and income of the respective parties'-and he therefore prays specific performance and enforcement of the contract on that interpretation.

It is to be noted that the plaintiff does not, for any recognized reason, in any manner directly or indirectly assail the agreement as a whole or ask that it be set aside. He simply asks that the court shall fix a new amount which shall be inserted in certain provisions of the contract as the amount thenceforth to be paid by plaintiff to defendant, and in that respect make a new agreement for the parties. It is true that in the attempt to sustain the action on the theory of one of specific performance it is sought to extend the real purpose of this action. It is suggested that the court shall make a judgment fixing this new amount and compelling defendant thenceforth to accept it and the plaintiff thenceforth to pay it. These latter propositions in our judgment, however, amount merely to an attempt to extend by mere words what is the real and substantial purpose of the action. Plaintiff has no interest in an action to compel defendant to accept some money from him, and he has no need for an action to compel himself to pay money to defendant, if he wants to. The real and only purpose is to have the court fix a new amount in the contract which the plaintiff will be bound to pay and which the defendant can collect if she wants to. If this amount is thus fixed, the whole difficulty, from plaintiff's standpoint, is settled, and there is no necessity for further provisions for specific performance of a contract which can be enforced at law.

[1] Thus we come to the question already outlined, whether the Supreme Court had jurisdiction to take hold of one of the provisions of this contract and determine the reasonable amount to be paid by one of the parties to the other and in that respect make a new agreement for them. We know of no principle, and we have been cited to no authority, which authorizes the court in this way, in effect, to write a clause in the contract for the parties. While the parties to this particular contract have attempted to agree that the court might exercise this jurisdiction, it really is not claimed that that agreement confers upon the court powers which it does not inherently possess. It seems to us that this case is not other than it would be if two parties making a contract for the sale of real...

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32 cases
  • McMains v. McMains
    • United States
    • New York Court of Appeals Court of Appeals
    • March 18, 1965
    ...parties, to provide therefor. Whatever the reason, it is not for the court to rewrite their contract. (See, e. g., Stoddard v. Stoddard, 227 N.Y. 13, 17, 124 N.E. 91, 92.) As I have already observed, I am not aware of any authority for the conclusion reached by the court; a mere reading of ......
  • Dorsett v. Dorsett
    • United States
    • Missouri Court of Appeals
    • February 4, 1936 cause of action for injunctive relief, enjoining the wife from enforcing said contract on the law side of the court. Stoddard v. Stoddard, 227 N.Y. 13, 124 N.E. 91; Adams v. Adams, 32 Pa. S.Ct. 353; Vandegrift Vandegrift, 63 N.J.Eq. 124, 51 A. 200; Gilsey v. Gilsey, 195 Mo.App. 205, 193 ......
  • Bud Anderson Heating & Cooling, Inc. v. Mike Neil & Absolute Hvac, LLC
    • United States
    • Arkansas Court of Appeals
    • March 7, 2018
    ...Court of Appeals has, in two cases, firmly and correctly rejected suggestions similar to the one now before us. In Stoddard v. Stoddard , 227 N.Y. 13, 124 N.E. 91 (1919), the parties to a maintenance contract in a divorce case inserted a clause purporting to authorize the court to modify th......
  • Waxstein v. Waxstein
    • United States
    • New York Supreme Court
    • July 28, 1976
    ...§ 28:35). But the court may not modify or alter its provisions so long as the agreement remains unimpeached (Stoddard v. Stoddard, 227 N.Y. 13, 20-21, 124 N.E. 91, 93-94; Goldman v. Goldman, supra, 282 N.Y. p. 300, 26 N.E.2d p. 267; Stillman v. Stillman, 20 A.D.2d 723, 724, 247 N.Y.S.2d 569......
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