
    Edward J. McGean, as Trustee for Catherine C. Parsons, Respondent, v. William E. Parsons, Jr., Appellant, Impleaded with Catherine C. Parsons, Defendant.
    First Department,
    April 4, 1912.
    Husband and wife — agreement for support and maintenance — provision as to separation — enforcement of agreement.
    A husband and wife having separated entered into an agreement, through the medium of a trustee, by the terms of which the husband was to pay the wife a certain amount monthly for her support and maintenance, In a suit in equity to reform the agreement by inserting a statement tha t the parties had separated, claimed to have been omitted by mutual mistake, and to recover monthly payments due, the judgment awarded the plaintiff the amount due and directed the husband to make the monthly payments in the future.
    Held, that the validity of the agreement depended! upon the existence of the fact that the parties had separated, not upon,a recital of it;
    That the obligation of the husband is a contract obligation and not to be enforced by contempt proceedings; hence, the provision in the judgment directing monthly payments in the future was improper.
    Appeal by the defendant, William E. Parsons, Jr., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 31st day of October, 1911, upon the decision of the court rendered after a trial at the Hew York Special Term.
    
      H. Aplington, for the appellant.
    
      John V. Judge, for the respondent.
   Miller, J.:

The defendants are husband and. wife. Having separated, they entered into an agreement on the 18th of February, 1890, through the medium of the plaintiff as trustee, by the terms of which the appellant,, the husband, agreed to pay $1,200 a year in monthly installments for the support and maintenance of the wife and two children, of whom the wife was to have the care and custody, and the trustee agreed to save the said appellant harmless from all debts thereafter contracted by the wife. The appellant made the stipulated payments up to May, 1910. The suit was brought in equity to reform the agreement by inserting a recital that the parties had separated, claimed to have been omitted by mutual mistake, and to recover the amount of the monthly payments due. The judgment appealed from directs the appellant to pay the sum of $1,700, the amount due on October 1, 1911, with interest, and the sum of $100 on the first day of each month in the future, according to the terms of the agreement.

While there was no recital on the subject in the agreement, the undisputed evidence shows that the defendants had separated and were living apart when the separation agreement was made. The plaintiff evidently thought that it was necessary to reform the agreement, and so brought the action in equity, but the validity of the agreement depended upon the existence of the fact, not upon a recital of it. The appellant did not raise the question that the plaintiff had an adequate remedy at law to recover the monthly installments due (see Clark v. Fosdick, 118 N. Y. 7), nor did he request a jury trial. However, the provision of the judgment directing monthly payments in the future was plainly improper. The obligation of the appellant is a contract obligation, not to be enforced by contempt proceedings. Greenleaf v. Blakeman (40 App. Div. 371; affd., sub nom. Greenleaf v. Schley, 166 N. Y. 627) was an action for the specific performance of an agreement to give security.

The judgment should be modified so as to provide only for a money judgment for the installments due, and as thus modified affirmed, without costs.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Judgment modified as directed in opinion, and as modified affirmed, without costs. Order to be settled on notice.  