Winter v. Winter

• Decision Date: 31 March 1908
• Parties: WINTER v. WINTER.
• Court: New York Court of Appeals Court of Appeals

191 N.Y. 462

84 N.E. 382

WINTER

v.WINTER.

Court of Appeals of New York.

March 31, 1908.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Louise Winter against Charles Winter. From a judgment of the Appellate Division (115 App. Div. 899,101 N. Y. Supp. 1149) reversing a judgment of the Appellate Term, which affirmed a judgment of dismissal of the City Court of New York, defendant appeals by permission. Affirmed, and judgment absolute rendered on the stipulation.

The parties to this action are husband and wife, but they had lived separate and apart from each other for six years, when they entered into an agreement under their hands and seals, of which the following is a copy: ‘Agreement made and entered into this 12th day of December, 1903, between Charles Winter, party of the first part, and Louise Winter, party of the second part, both of the county and state of New York. Whereas, the party of the second part now is and has been for several years past living apart and separate from the party of the first part, who is her husband; and, whereas, differences have arisen between the parties, by which they hereby agree to and do mutually separate and live apart, and in consideration of the payments to be made, as hereinafter stated, by the party of the first part to the party of the second part, each of the said parties agree that neither of them or either of them will interfere with the rights, privileges, doings, or actions of each other, and will not interfere in any way, manner, or shape with each other, and each of the parties is at liberty to act and do as they see fit. The party of the first part agrees to pay to the party of the second part the sum of $5 each and every week, which payment is for the support and maintenance of the party of the second part, payments to be made on Friday and Saturday of each week, the money to be sent to the address of the party of the second part by post office money order. The party of the first part also agrees to pay in addition to the $5 weekly the sum of $2 per week on account of the balance due the party of the second part, pursuant to an agreement heretofore made between the parties. In the event of the party of the second part in any way interfering with the party of the first part such violation of this agreement shall have the effect of avoiding the obligations assumed by the party of the first part. In the event of the party of the first part being sick and unable to work so that he will not earn money to make his payments as herein agreed upon, then the part of the first part shall send to the party of the second part a doctor's certificate of such sickness, in which case the payments shall be delayed until the recovery of the party of the first part, and payments must be made up for such delay.’

The balance due, ‘pursuant to an agreement heretofore made between the parties,’ referred to in the foregoing instrument, accrued under an earlier contract, of which the following is a copy, seals and signatures being omitted: ‘Agreement made this 10th day of April, 1900, between Charles Winter, party of the first part, and his wife, Louise Winter, party of the second part, both of the city of New York, as follows: Whereas, marital differences have, for a long time past, arisen between the respective parties hereto, and the parties having separated, and having lived separate from each other for a considerable length of time, and the respective parties having come to a mutual understanding, it is agreed as follows: That the party of the first part agrees to give to the party of the second part the sum of $5 per week for the support and maintenance of the said party of the second part, payment to be made on each Tuesday, and commencing with the date of this agreement, payment to be made by post office order to the party of the second part. The respective parties hereto further agree that each of them will not interfere with, bother, annoy, or in any way or manner cause each other any trouble or annoyance in the future.’

This action was brought by the wife in the City Court of the city of New York to recover from her husband the sum of $621 alleged to be due by virtue of the two intsruments. The answer admitted the execution of both contracts, but alleged among other defenses that they were illegal, null, and void. Without taking any evidence, the complaint was dismissed at the trial upon the opening and the pleadings because, as the trial judge announced, ‘the contract is void in law, and not enforceable.’ The judgment entered accordingly was affirmed on appeal by the Appellate Term of the Supreme Court, but reversed by the Appellate Division, one of the justices dissenting. The defendant obtained leave, and appealed to this court.August P. Wagener, for appellant.

Moses Strassman, for respondent.

VANN, J. (after stating the facts as above).

Any contract between husband and wife, at least without the intervention of a trustee, as well as every contract between the wife and any third person, was void at common law. This rule rested on the principle that the existence of the wife was merged in that of her husband and the unity was so complete that nearly all their legal rights depended upon it. In 1848 the Legislature of this state began very cautiously to sever the merger of identity, and by 1862 had progressed so far as to permit a married woman to carry on business and make contracts with reference to her separate estate. Laws 1848, p. 307, c. 200; Laws 1860, p. 157, c. 90; Laws 1862, p. 343, c. 172. Legislation continued to advance by gradual and seemingly reluctant steps until in the course of half a century complete freedom of contract was extended to married women with reference to every subject except the contract of marriage itself. The final act was the domestic relations law, passed in 1896, which provided that ‘a married woman has all the rights in respect to property, real or personal, and the acquisition, use, enjoyment and disposition thereof, and to make contracts in respect thereto with any person including her husband, and to carry on any business, trade or occupation, and to exercise all powers and enjoy all rights in respect thereto and in respect to her contracts, and be liable on such contracts, as if she were unmarried; but a husband and wife cannot contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife.’ Laws 1896, p. 220, c. 272, § 21. This section changed and codified many previous statutes, each of which had advanced further than any of its predecessors toward the complete commercial emancipation of married women. We cite some of the latest merely to illustrate the subject. Laws 1892, p. 1139, c. 594; Laws 1890, p. 464, c. 248; Laws 1884, p. 465, c. 381.

The courts at first were more conservative than the Legislature,and construed the various statutes with caution and concern. They were not eager to extend, nor even at once to fully recognize, the innovations upon the common law repeatedly made by the Legislature; but at last most of the mooted questions, many in doubt for years, have been settled, although we are now confronted by one which has long been under discussion in some of its phases, and which, owing to the diverse action of the courts below, may still be regarded as open. The Appellate Term apparently relied upon an earlier decision made by itself, which held that, as the husband's duty of support remains unchanged by statute, any agreement between him and his wife, whereby that duty is limited to a specific provision, tends to relieve him of his liability to support his wife, and to preclude all inquiry into the sufficiency of the provision. This was regarded as opposed to the policy of the state, and as not sanctioned by the domestic relations law. The decision rests on original reasoning rather than authority. Carling v. Carling, 42 Misc. Rep. 492,86 N. Y. Supp. 46.

On the other hand, the Appellate Division, while writing no opinion in this case, based its judgment of reversal on its opinion in Effray v. Effray, 110 App. Div. 545,97 N. Y. Supp. 286. The argument in that case is that, if the agreement to support were a mere contract between a husband and wife then living together to separate and live apart in the future, it would be void as against public policy. As, however, the parties had already separated, and an action for a limited divorce was pending, an agreement that the parties should continue to live apart, and that the husband should pay a certain sum for the support of his wife, is valid, and can be enforced, even without the intervention of a trustee. Reliance was placed upon Pettit v. Pettit, 107 N. Y. 677, 14 N. E. 500;Galusha v. Galusha, 116 N. Y. 635, 22 N. E. 1114, 6 L. R. A. 487, 15 Am. St. Rep. 453, and Lawson v. Lawson, 56 App. Div. 535,67 N. Y. Supp. 356.

In Pettit v. Pettit the parties had separated, and an action for a limited divorce was pending when they entered into an areement that provided for the wife's support through a division of the husband's property, which was to be converted into money, and after payment of his debts one-third of the remainder paid over to her. An examination of the record in that case, as it appears on our files, shows that the contract was directly between husband and wife, without the intervention of a trustee. It recited that an action for a separation brought by the wife was pending, and that ‘the children of the parties have intervened and induced them to settle and compose all strife between them, and to mutually condone and forgive all past offenses by either against the other.’ After providing for the sale and division of the husband's property it concluded as follows: ‘It is further agreed that, such payment being made, the said action shall be discontinued, and the said Susan Pettit shall be deemed to have forgiven and condoned, finally and forever, all alleged offenses...