Opinion
December 10, 1951.
On January 21, 1938, plaintiff's testatrix and defendant entered into a separation agreement providing for the payment by defendant to decedent of $80 a week until October 1, 1938, and thereafter at the rate of $40 a week. Payments were made under the agreement for about twelve years until September 19, 1950. In this action to recover the $40 weekly payments from September 19, 1950, to the date of decedent's death on March 24, 1951, amounting to $1,080, plaintiff's motion for judgment on the pleadings was denied because the allegation of due performance in the complaint was denied in the answer. Order reversed on the law, with $10 costs and disbursements, and motion granted, with $10 costs. A general denial of an allegation of due performance is insufficient to raise an issue under present rule 92 of the Rules of Civil Practice. Under the terms of the separation agreement, the weekly payments were to continue during the lifetime of plaintiff's testatrix. The $25,000 deposited by defendant was as security and was not to be the limit of the weekly payments required to be made by defendant. The interpretation suggested by defendant, to wit, that the $25,000 deposited was to be in full satisfaction of all claims of plaintiff's testatrix for support, is not only not warranted by the language of the agreement, but would make the agreement illegal. ( Kyff v. Kyff, 286 N.Y. 71.) Nolan, P.J., Carswell, Johnston, Sneed and Wenzel, JJ., concur.