Summary
In Hettich v. Hettich (301 N.Y. 447, supra) the certified questions presented only the sufficiency of the third affirmative defense, viz., the invalid agreement of May 27, 1935; the Statute of Limitations was not involved. Whatever right plaintiff had to recover the installments of June, July and August, 1935, prior to the Nevada divorce decree, is barred by the six-year Statute of Limitations.
Summary of this case from Hettich v. HettichOpinion
Argued October 3, 1950
Decided October 19, 1950
Appeal from the Supreme Court, Appellate Division, First Department, EDER, J.
George Trosk for appellant. Clifton F. Weidlich for respondent.
The third affirmative defense to the first cause of action cannot be a complete defense in view of the admitted failure to pay installments due under the 1932 agreement for the months of June, July and August, 1935. Moreover, the agreement alleged in said defense upon its face violates the public policy exemplified in section 51 of the Domestic Relations Law, in that it has a direct tendency toward dissolving the marriage between the parties and was by its terms entered into in order to facilitate "their divorce action" ( Harris v. Harris, 287 N.Y. 444, 448; Schley v. Andrews, 225 N.Y. 110).
The order should be affirmed, with costs. The first question certified is answered in the negative, the second question certified answered in the affirmative and the third question certified not answered.
I cannot concur in the court's conclusion that the separation agreement here under consideration violates section 51 of the Domestic Relations Law or, to use the language of the majority opinion, "the public policy exemplified" therein. We all recognize that the agreement is not a contract to "relieve the husband from his liability to support his wife" (§ 51), and, in my view, it is not one which either alters or dissolves the marriage (§ 51) or "has a direct tendency toward dissolving" it.
Accordingly, I vote to reverse the order of the Appellate Division.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE and FROESSEL, JJ., concur in Per Curiam opinion; FULD, J., dissents in memorandum.
Order affirmed, etc.