
    James M. Gray, as Trustee, Appellant, v. Orlando W. Butler, Respondent, Impleaded with Annie Butler, Appellant.
    Second Department,
    January 18, 1907.
    Husband and wife —A separation agreement —when same not enforcible-^ contract relieving husband from liability to support -wife void.
    A separation agreement executed between husband .and wife at a time when they, are living together, :ahd when-there is no immediate -intention to-separate and live apart, is unenforcible in equity.
    Such agreement will not be enforced on the theory that it is made to .secure the wife a legal division of the husband’s property, if, in terms, the wife accepts ' the provision in satisfaction of her support and maintenance;.’and" relieves! the husband from claims upon his personal property and from liability for her debts, because by virtue of section 21 of the Domestic Relations Law a married woman cannot contract to relieve her husband from his liability to support her.
    Appeal by the plaintiff, James M. Gray, as trustee, and by the defendant, Annie Butler, from a judgment of the Supreme Court in favor of' the defendant, Orlando W. Butler, entered in the.office Of the clerk of the county of Kings1 on the 5th day of December, 1905, upon the decision of the court rendered -after .a trial , at the Kings'. County Special - Term dismissing the complaint upon the merits. -
    
      Herbert T. Ketcham [James M. Gray with him on the brief], for the appellants.
    
      Carlton B. Pierce, for the respondent.
   Rich, J.:

This action was brought to enforce the provisions of a separation agreement executed at a time when defendants were living together as husband and wife, that relation continuing for more than six months thereafter. The agreement was kept a secret, and to all outward appearances there was no change in the relations of the parties, who continued to live together the-same as they had done before. The learned justice presiding at the trial has found upon sufficient evidence that it was not the purpose of either spouse at the time of executing the agreement to live separate and apart. Under these circumstances such a contract cannot be enforced in equity. (Westmeath v. Salisbury, 5 Bligh, 338; Zimmer v. Settle, 124 N. Y. 137; Carson v. Murray, 3 Paige, 483, 501; Hughes v. Cuming, 36 App. Div. 307.) It is urged, however, by the learned counsel for the plaintiff that in view of another finding that “ the sole purpose of the execution of the agreement ivas-to secure to the wife a legal division of the property of the husband,” the case of a valid and enforcible agreement between the parties is presented. We are unable to concur in this view. The Domestic Relations Law (General Laws,- chap. 48 [Laws of 1896, chap. 272], § 21) provides: “ A married woman has all the rights in respect to property, real or personal, and the acquisition, use, enjoyment and disposition thereof, and to make contracts in .respect thereto with any person including her husband,. * * * as if she were unmarried, but a - husband and wife can not contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife.” This is precisely what the parties to this agreement sought to do. In consideration of certain payments proposed t£> be made by the husband, his wife agreed to accept" the same in full satisfaction for her support and maintenance and to relieve him from any and all claims she may have upon his personal property, and the trustee on his part agreed to save the husband free from all debts due or payments incurred by the,wife. Such an agreement under the guise of a separation agreement is in contravention of the statute and void. I am not unmindful of the recent decision of tins court (Reardon v. Woerner, 111 App. Div. 259), in which it was-held that an action would lie to enforce the condition of a contract of separation, but that case is distinguishable from, this in tliat the husband and wife had actually separated and the contract was made to insure the support and protection of the wife, while in the case at. bar there was no separation and none was contemplated when the contract was executed.

The judgment'must be affirmed, with costs. '

.Hirsohberg, P. J., 'Woodward, Jenks and Miller, JJ., concurred. ' z . .

Jiidgment affirmed, with costs.  