Opinion
March 28, 1958
Kendrich C. Smith and James E. Donovan for plaintiff.
William I. Niles for defendant.
Plaintiff wife moves pursuant to rules 109 and 110 of the Rules of Civil Practice, to dismiss two counterclaims interposed by the defendant husband in this separation action.
The defendant's first counterclaim seeks specific performance of an unexecuted separation agreement wherein the plaintiff and defendant allegedly agreed to convey real property held by them as tenants by the entirety, and to share the proceeds thereof. This unsigned agreement is unenforcible under section 259 Real Prop. of the Real Property Law which provides "A contract for the leasing for a longer period than one year, or for the sale, of any real property, or an interest therein, is void, unless the contract, or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged".
Defendant alleges that the agreement is enforcible notwithstanding the Statute of Frauds where a confidential relationship will be violated or fraud or injury will result without redress. The unsigned agreement itself makes it evident that no such confidential relationship will be violated, or such injury result. The first counterclaim is dismissed.
Defendant's second counterclaim alleges fraud in that the defendant was induced to pay to the plaintiff the sum of $1,000 out of the proceeds of their joint savings account, by the plaintiff's promise to execute the separation agreement.
Section 51 Dom. Rel. of the Domestic Relations Law provides "a husband and wife cannot contract to relieve the husband from his liability to support his wife." The agreement in question would merely work a division of property real and personal to which the plaintiff had title or an interest prior to the time the alleged agreement was entered into. This agreement would be unenforcible since it attempted to relieve the husband from his liability to support rather than make provision for maintenance and support. Therefore, the alleged misrepresentations by the wife that she would execute the agreement would not be material in that the agreement was not enforcible.
Both counterclaims are dismissed.
Settle order on notice.