Taylor v. Renzi

• Citation: 41 Misc.2d 160,245 N.Y.S.2d 456
• Parties: Earl S. TAYLOR, Plaintiff, v. Michael R. RENZI, Defendant, and Bessie M. Brown, Substitute Defendant.
• Decision Date: 24 April 1963
• Court: New York Supreme Court

Page 456

245 N.Y.S.2d 456

41 Misc.2d 160

Earl S. TAYLOR, Plaintiff, v. Michael R. RENZI, Defendant, and Bessie M. Brown, Substitute

Defendant.

Supreme Court, Special Term for Motions, Onondaga County.

April 24, 1963.

Smith & Sovik, Syracuse, for plaintiff.

Gene H. Ratcliff, Watertown, for defendant.

RICHARD J. CARDAMONE, Justice.

This is a motion for summary judgment brought by the plaintiff husband to compel the payment of $2,000, held in escrow by the defendant, Renzi. All of the parties, or their attorneys, were present at the oral argument of this motion and consented to the amendment of their pleadings so as to have all three parties named above joined in the action.

The plaintiff husband instituted an action against the defendant attorney on the 19th of May 1962, alleging that the plaintiff had retained the said attorney to prepare a separation agreement between the plaintiff and his then wife. The husband deposited the sum of $2,000 with the said attorney to be held in escrow and delivered to the wife, contingent upon her obtaining an Alabama divorce. He further alleged that his wife never obtained an Alabama divorce, but did obtain an annulment in the State of New York. The defendant attorney interposed an affidavit in which he claimed that summary judgment would prejudice the rights of the defendant wife, who has 'a right to a full trial on the issues in the case'. At the same time, the defendant attorney, in his own affidavit, stated that he had no interest in the sum claimed, except to pay the person rightfully entitled thereto, that he is in doubt and that he cannot safely determine to whom the sum should be paid. He expressed willingness to pay the said sum as the court may direct, upon being discharged from liability to both of the said claimants.

Plaintiff husband and the defendant wife were married on April 4th, 1959. They were separated approximately fourteen months later, on June 13th, 1960. The following day, June 14th, 1960, they executed a separation agreement which stated that the parties 'agreed to live separate and apart during their natural lives'. The agreement divided their personal property. It also provided that in consideration of the husband's paying to the wife the sum of $2,000, the wife would release the husband 'from all further obligations and claims as his wife', and that 'it is understood and agreed that Bessie M. Taylor will journey to Alabama and will satisfy the necessary requirements there for the dissolution of the marrriage and that Earl F. Taylor will consent and sign the necessary waiver and appearance for the State of Alabama'. It was further agreed that Earl F. Taylor would leave in escrow the sum of Two Thousand ($2,000) dollars, 'to be paid to Bessie M. Taylor upon the date that a decree of divorce is rendered in the State of Alabama'.

Both husband and wife are now claiming the $2,000. The husband claims it on the ground that the contingency of the Alabama divorce never took place. The wife claims it on the theory that she obtained a New York State annulment.

Section 51 of the Domestic Relations Law 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'. This is the settled policy of this State, (LaMontagne v. LaMontagne, 239 App.Div. 352, 267 N.Y.S. 148 (First Dep't 1933), aff'd 264 N.Y. 552, 191 N.E. 560 (1934); DeRobertis v. DeRobertis, 261 App.Div. 476, 25 N.Y.S.2d 929 (Fourth Dep't 1941); Kyff v. Kyff, 286 N.Y. 71, 35 N.E.2d 655 (1941)). In Matter of Rhinelander, 290 N.Y. 31, at page 37, 47 N.E.2d 681, at page 684 (1943) the court stated:

'In pursuance of our settled policy to favor the continuance of the marriage relation, we have, however, consistently refused enforcement to a separation or support agreement shown to be part of a scheme to obtain or facilitate a divorce, as when the husband promises to pay alimony as a reward to his wife for getting a divorce, or when the money provisions for her support are a premium or award, inducement or advantage to the wife for procuring a divorce.'

Where it is difficult to decide on a motion whether certain portions of a contract (void under Dom.Rel.Law, § 51) are divisible or so integral a part of the contract as to vitiate the entire contract, then the matter is one to be decided after a trial rather than upon a motion addressed to the pleadings (Lacks v. Lacks, 12 N.Y.2d 268, 238 N.Y.S.2d 949, 189 N.E.2d 487 (Feb. 1963)).

In this case, it is not difficult to find the entire agreement a scheme, with a $2,000 inducement, rendering it wholly void and contrary to public policy (Dom.Rel.Law, § 51). There...