
    (29 Misc. Rep. 257.)
    CURTIS v. CURTIS.
    (Supreme Court, Special Term, Onondaga County.
    October, 1899.)
    Divobce—Voluntary Separation—Alimony.
    Where, under an agreement o£ voluntary separation between husband and wife, the husband pays money to the wife, and they live apart for several years, the wife is not entitled to alimony and counsel fees in an action brought in part to render said agreement inoperative, and in part for separation on account of abandonment and cruel treatment which took place before the agreement was made.
    Action by Sarah Curtis against Edward Curtis. Motion for alimony and counsel fees denied.
    F. W. Talbott, for the motion.
    A. C. Phillips, opposed.
   HISCOCK, J.

This action, in part, is brought upon the theory of one to procure a judgment of separation upon the ground of cruel and inhuman treatment and of abandonment. The other part of the action is devoted to an attempt to get rid of an agreement made between the parties hereto, with the intervention of a third person, as trustee, for a voluntary separation, and under which defendant paid to plaintiff $200, and under which they have for several years been living apart. The only acts alleged in the complaint upon which judgment could be asked upon the ground of cruel and inhuman treatment took place nearly eight years ago, and before the execution of the agreement in question, which is dated May 9, 1892, and they are alleged not so much as a ground for separation as constituting a species of duress under which the plaintiff was induced to execute the agreement of separation which she now seeks to get rid of. The only abandonment alleged in the complaint, or provable under it, is the voluntary one which has taken place between the parties hereto, under the agreement of separation hereinbefore referred to. Under the circumstances, I do not think that the plaintiff presents a sufficient ground for granting the motion in question, and which is therefore denied.

Motion denied.  