
    Mary E. McCormack, Appellant, v. James H. McCormack, Respondent.
    Second Department,
    June 29, 1908.
    Husband and wife — separation agreement — when valid — pleading — fraud.
    A separation agreement between a husband and wife, made while the parties are living apart, and while an action for .separation is pending against the husband, is valid and. binding, and it makes no difference in an action for money due thereunder whether or not there was legal cause for separation.
    .Allegations in the answer that'defendant’s signature “was procured by fraud” and the contract “ executed by the defendant under duress exerted against the .. defendant by the plaintiff,” are insufficient to raise the question of fraud.
    Appeal by the plaintiff, Mary E. McCormack, from a judgment of the County Court of Westchester county in favor of the defendant, entered in the office of the clerk of said county on the 14th day of June, 1907, upon the verdict of a jury dismissing' the complaint upon the merits, and also from an, order entered in said clerk’s office on the 14th day of June, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      John W. Remer, for the appellant.
    
      R. Emmet Digney, for the respondent.
   Rich, J.:

This action was brought to recover "a sum claimed to be due the plaintiff from the 'defendant, her husband, under a separation agreement. It appears that on the 19th day of September, 1904, she left her husband and three days later commenced an action against him for a separation from bed and' board. On the eleventh day of October an agreement or contract of separation was signed and duly.acknowledged by the parties, in-and by which the defendant agreed, among other things, to pay plaintiff for the support and maintenance of herself and two sons the sum of $35 per week, payable weekly, thereafter. At the time of the commencement of this action there was unpaid upon said contract or agreement the sum. of 8175. ■

Upon the trial the learned county judge submitted to the jury for its determination the question as to whether the wife had sufficient cause to leave her husband. He said: “ The husband and wife have a right to sign this agreement when they are so separated by substantial family differences that sometimes exist between them, and if that was this case this is a legal contract; but if without any fault on the part of this defendant, purely because the wife was dissatisfied with him or for some'reason, religious or otherwise, she elects to live separate and apart from him, and to seek support at his hand, why if she went without his fault out of that house and without cruel and inhuman treatment, then you must render a verdict of no cause of action.” The plaintiff’s right to recover was in no manner dependent upon the question of whether she had sufficient cause to leave defendant, and the charge was erroneous. She had left him and an action for separation was pending between them before the agreement was executed, and that was enough. An agreement between a husband and wife to live separate and apart, made under such circumstances (unless induced by fraud) is valid and binding (Effray v. Effray, 110 App. Div. 545 ; Winter v. Winter, 191 N. Y. 462), and it .makes no difference whether the “unhappy differences” did or did not constitute sufficient legal cause for the separation.

The answer of defendant contained the bare allegation that his signature to the contract “was procured by fraud” and executed by the defendant under duress exerted against the defendant by the plaintiff.” The allegation was insufficient to raise the question of fraud, and that question was not involved in the issues, yet defendant was permitted to make proof under this allegation. The evidence, however, was not sufficient to raise a question of fact, and ought not to have been submitted to- the jury.

It appeared that the' plaintiff refused to meet defendant or to be present when he signed the agreement, which was done in the office of his attorney.

In the case of Winter v. Winter (supra) the complaint only alleged the making of the agreement, its breach, and the cause of action was sustained. It was held that a husband and wife living separate and apart from each other may make a valid and binding separation agreement without the intervention of a third person, and that such an agreement is not in conflict with public policy or- the Domestic Relations Law (Laws of 1896, chap. 272, § 21), and in the Effrccy case the findings of fact, upon'which the judgment for plain tiff was based, were .that- prior tó the making of the agreement the husband and wife were separated, and an action was pending for separation from bed and board; that they entered into a voluntary agreement under' which the defendant was indebted to the plaintiff. The. contract in the case at bar being valid, and based upon sufficient consideration, is enforcible. The causes leading to the separation, as well as their gravity, were immaterial and riot a factor in determining éither the legality of the contract or the liability of the defendant under its provisions.

It follows, therefore, that the judgment and order must be reversed and a new trial ordered, costs to abide the event.

.Woodward, Hooker, Gaynor and Miller, JJ., concurred.

Judgment and order of the County Court of Westchester county reversed and new trial ordered, costs to abide the event.  