
    Jennie Scheinkman, Plaintiff, v. Bernard Scheinkman, Defendant.
    (Supreme Court, New York Special Term,
    September, 1909.)
    Alimony — When alimony will be awarded — Articles of separation as affecting right to allowance — Unperformed agreement for support.
    It is not an answer to a motion for alimony that there is a separation agreement between the parties providing, for the payment of moneys for the support of the plaintiff and her children, where the defendant is in default in the performance of such agreement.
    Motion by the plaintiff for alimony and counsel fee.
    May & Jacobs, for motion.
    Thomas W. Butts, opposed.
   Giegerich, J.

The defendant sets up the fact that there is in existence a separation agreement between him and the plaintiff as parties of the first and second parts and one Michel Bernstein, as trustee for the plaintiff, as party of the third part, by the terms of which the sum of $3,800 annually in equal half monthly installments is to be paid'by him for the support and maintenance of the plaintiff and her children. On behalf of the defendant the point is made that the wife’s remedy is an action for specific performance of the agreement; or, if it is unfair or inequitable or was fraudulently obtained, by an action to set it aside. If the defendant were not in default in the performance of his obligation under the agreement he would doubtless be protected against any attempt of the wife to secure a further allowance. Galusha v. Galusha, 138 N. Y. 272. He is, however, in arrears in the payment of the installments provided by the agreement, and for that reason the wife has begun this action and made this motion. In a recent case (Phillips v. Peacock, 63 Misc. Pep. 520), where an action was brought by the trustee under a separation agreement to compel its specific performance and a motion was made for alimony and counsel fee, I held that such a motion should not be granted, and that the wife must either stand upon the agreement and relinquish the special rights incident to the matrimonial relation, or she should relinquish her rights under the contract and stand on her rights as a wife. This case is in a measure the converse of that. The husband is here seeking to evade the obligation of the matrimonial relation and at the same time is not performing the obligation which he assumed by his contract. It is manifest that he cannot be allowed to take such inconsistent positions. As he has not paid the stated sums provided in the agreement the wife should be permitted to disregard that agreement and seek in the usual way to compel the payment of alimony and counsel fee. She does not ask for payment of the sums provided in the agreement for her support, but for such amount as is reasonable. Passing now to the question of the amount of the allowance, it is shown to my satisfaction that-the circumstances of the defendant have changed very decidedly for the worse since the separation agreement was made in April, 1907. At that time he was the owner of a large number of pieces of real estate, which were, however, heavily mortgaged. During the period of depression that has intervened since the date of the agreement the mortgages on some of these properties have been foreclosed and deficiency judgments in large amounts have been taken against him. Other parcels he has conveyed away, claiming to have made the best terms possible for himself. On behalf of the wife it is insisted that he still has valuable equities in such pieces of property, but I am-by no means satisfied by the papers before me that such is the fact; or, at any rate, that such equities, if they exist, are of any immediate financial valúe. At the present time the defendant is doubtless in sore financial straits, and I believe has been doing the best he could for his family. He has been paying twenty dollars per week for the support of his wife and three of the children. Of the four children mentioned in the separation agreement one, a son, is now self supporting, earning seven dollars a week. The other three are being boarded at the rate of four dollars a week with one or the other of the married daughters of the parties. This leaves eight dollars per week for the plaintiff’s use. Hpon the facts, so far as I can gather them from the present papers, this seems all that the defendant should be required to pay until his financial condition improves. An allowance of seventy-five dollars for counsel fee will also be made, payable in such installments as may be provided in the order, which may be presented on the usual notice of settlement.

Ordered accordingly.  