
    Irene R. Lacks, Respondent, v. Harold G. Lacks, Appellant.
    Argued January 8, 1963;
    decided February 28, 1963.
    
      
      Monroe J. Calm and Herbert 8. Greenberg for appellant.
    I. Plaintiff may not have reformation of the contract insofar as it relates to payments for her support while living with defendant because such contract violates section 51 of the Domestic Eelations Law and is unenforcible. (Garlock v. Garlock, 279 N. Y. 337; Brooklyn Trust Co. v. Lester, 239 App. Div. 422; Haas v. Haas, 298 N. Y. 69; Flegenheimer v. Brogan, 284 N. Y. 268; Adler v. Zimmerman, 233 N. Y. 431; O’Mara v. Dentinger, 271 App. Div. 22; Metcalf v. Metcalf, 274 App. Div. 744; Reynolds Metals Co. v. Metals Disintegrating Co., 176 F. 2d 90; Adams v. Union Dime Sav. Bank, 144 F. 2d 290, 323 U. S. 751.) II. Plaintiff may not have reformation for defendant’s alleged fraud in misrepresenting to her the meaning of specific provisions of the agreement except upon allegations and proof of facts, here lacking, establishing absence of negligence on her part and necessary and justified reliance by her on such misrepresentations. (Pimpinello v. Swift & Co., 253 N. Y. 159; Metzger v. Ætna Ins. Co., 227 N. Y. 411; Porter v. Commercial Cas. Ins. Co., 292 N. Y. 176; Amend v. Hurley, 293 N. Y. 587; Lucio v. Curran, 2 N Y 2d 157; Ross v. Food Specialties, 6 N Y 2d 336; Dunckel v. Parsons, 274 App. Div. 539; Viskovich v. Walsh-Fuller-Slattery, 16 A D 2d 67; First Nat. Bank of Odessa v. Fazzari, 10 N Y 2d 394; Kalmanash v. Smith, 291 N. Y. 142; Sterling Ind. v. Ball Bearing Pen Co., 298 N. Y. 483.) III. The charge, common to all of the counts, of ‘6 the fraud of defendant in concealing his knowledge ” of the contract provisions sought to be reformed is insuEcient. (Perin v. Mardine Realty Co., 5 A D 2d 685, 6 N Y 2d 920.) TV. The cause of action as a whole fails to set forth facts suEcient to justify reformation. (Ross v. Food Specialties, 6 N Y 2d 336.)
    
      
      Irving 1. Erdheim and Fred Lichtblau for respondent.
    I. Appellant, having availed himself of the very agreements here in question, having affirmed them by declaration and by acts, has waived any defenses he has to them and is estopped from asserting their invalidity. (Rothschild v. Title Guar. & Trust Co., 204 N. Y. 458; Parsons v. Lipe, 158 Misc. 32, 243 App. Div. 681, 269 N. Y. 630.) II. The agreements sought to be reformed do not conflict with the prohibition of section 51 of the Domestic Relations Law. (Garlock v. Garlock, 279 N. Y. 337; Haas v. Haas, 298 N. Y. 69; Brooklyn Trust Co. v. Lester, 239 App. Div. 422; Whedon v. Whedon, 247 App. Div. 463; Landes v. Landes, 94 Misc. 486; Galusha v. Galusha, 116 N. Y. 635; Marks v. Marks, 127 Misc. 416; Borax v. Borax, 4 N Y 2d 113; Adams v. Adams, 91 N. Y. 381; Sommer v. Sommer, 87 App. Div. 434; Rodgers v. Rodgers, 186 App. Div. 77, 229 N. Y. 255.) III. Respondent was not required to plead facts alleging an absence by her of negligence at the time she entered into the agreements, (Pimpinello v. Swift & Co., 253 N. Y. 159; Matter of Smith, 243 App. Div. 348; Albany City Sav. Inst. v. Burdick, 87 N. Y. 40; Smith v. Smith, 134 N. Y. 62.) IV. Plaintiff has sufficiently alleged a danse of action for reformation. (Metzger v. Ætna Life Ins. Co., 227 N. Y. 411; Porter v. Commercial Cas. Ins. Co,, 292 N. Y. 176; Clearview Associates v. Clearview Gardens First Corp,, 285 App. Div. 969; Buckley v. 112 Cent. Park South, 285 App. Div, 331; Mandelbaum v. Mandelbaum, 1 A D 2d 688.)
   Vah Voorhis, J,

In an endeavor to compromise marital differences and to adjust property interests, these parties entered into an agreement on December 17,1959, which was modified by a supplemental agreement on April 22,1960. This appeal, under the certified question, concerns solely whether the third cause of action is sufficient in law. Except as hereafter stated, the objections by appellant to the sufficiency of the third cause of action in the complaint relate to matters of evidence rather than pleading. That cause of action asks for reformation of these agreements in many respects, including reformation of paragraph Fourth of the second agreement, which, in turn, revised paragraph “ Fourth ” of the original agreement. This paragraph is challenged by appellant as being void as against public policy. It originally provided for the payment of $30,000 per pnnm by the husband to the wife ‘ ‘ for her personal use and maintenance ” unless and until the wife should institute a legal proceeding against the husband for separation or divorce. The amount was increased to $37,500 by the amending agreement and this provision is sought to be varied in other respects by the reformation which is asked under the third cause of action. The husband contends, on this appeal, that an agreement by a husband is void to pay an annual sum to the wife in lieu of her support and maintenance while they are living together as husband and wife. That contention is correct (Garlock v. Garlock, 279 N. Y. 337). Reformation is not granted of void provisions in contracts, nor are contracts reformed by fashioning them so that they will become void (Reynolds Metals Co. v. Metals Disintegrating Co., 176 F. 2d 90; 76 C. J. S., Reformation of Instruments, p. 336; Metcalf v. Metcalf, 274 App. Div. 744). Consequently the third cause of action would be insufficient in law if it concerned merely the reformation of this clause in the agreements. It is difficult upon a motion of this character to determine whether this portion of these contracts is so integral a part of them as to vitiate them in their entirety. If this clause be severable, it is possible that other paragraphs in the agreements may be capable of reformation in the manner applied for by plaintiff on other aspects of the third cause of action. Whether these agreements are divisible in this respect, with the consequence that this void portion would be severable, or whether the contracts are entire, is a matter to be decided after a trial rather than upon a motion addressed to the pleadings. If any portion of a cause of action is sufficient, it should not be dismissed on motion (Abrams v. Allen, 297 N. Y. 52). Without determining the severability of this void clause at this stage in the litigation, the order appealed from should be affirmed, without costs, and the certified question answered in the negative,

Dye, J. (concurring).

In concurring for affirmance, I would like to point out that nothing in the language of the contracts sought to be reformed purports “ to relieve the husband from his liability to support his wife ” (Domestic Relations Law, § 51); nor is there anything purporting to provide for future support of the wife in the event of and contingent upon a later separation of the parties or a dissolution of the marriage, either of which contingencies would be repugnant to settled public policy (Galusha v. Galusha, 116 N. Y. 635). These contracts, by their express terms, make it clear that the parties were dealing with and intended to reconcile marital differences that threatened continuance of the marriage relation, a purpose which we have always approved and encouraged (Rodgers v. Rodgers, 229 N. Y. 255), the settlement of recognized separate interests in community property, and the husband’s responsibility to his wife as an individual, by all of which considerations the parties recognized and sought to implement the beneficient social concept underlying section 51.

To remove any doubt that these agreements meant anything other than what the parties said in the plainest of language and were in fact merely a subterfuge to avoid the husband’s support liabilities imposed by section 51, it was expressly provided that, if and when the wife instituted legal proceedings to alter or dissolve the marriage, the husband was to be relieved of further payments under the contracts and the wife was to have “ the right in any such legal proceeding to assert all of her marital rights against Harold [the husband] for support and maintenance as any court having jurisdiction over such proceeding may therein determine ”. Our holding in Garlock v. Garlock (279 N. Y. 337) should not now be enlarged as meaning more than it decided so as to render unenforcible a contract such as this made between a husband and wife while living together. In Garloch the contract deemed unenforcible provided in so many words that the payments by the husband shall be in lieu of and in release of any and all obligations which the party of the first part [the husband] otherwise has or shall have to support and maintain party of the second part ”, which provision was exactly contrary to the present situation. Nor is this case at all similar to Haas v. Haas (298 N. Y. 69), where the agreement also provided for the complete release of the husband’s support liabilities in the event his wife engaged in the retail linen business. In light of our former decisions it seems clear that these contracts are not at all repugnant to section 51. By their express terms the agreements do not purport and may not be read as relieving the husband of his support liabilities either presently or in the future. Furthermore, this being an action to reform, nothing turns on the circumstance that some of the items might otherwise come within the bar of the Statute of Frauds, since it is a well-established rule that neither the statute nor the parol evidence rule forbids reformation of a written contract to include material orally agreed upon, but, because of mutual or unilateral mistake plus fraud, not inserted in the writing (Brandwein v. Provident Mut. Life Ins. Co., 3 N Y 2d 491).

The pleading on its face is sufficient. If the plaintiff proves that the alleged matters orally agreed upon were not included in the writings by reason of mutual or unilateral mistake plus fraud, then she is entitled to reformation.

The order appealed from should be affirmed, with costs, and the question certified should be answered in the negative.

Fuld, J. (concurring).

Entertaining the same view as does Judge Dye, I perceive no basis for invalidating any provision of the agreement before us.

In her complaint, the plaintiff alleges that there had been a long history of matrimonial discord which culminated in her institution of separation actions against the defendant based on his assertedly cruel and inhuman treatment; that she was induced to discontinue these actions upon the defendant’s promise and assurance that his conduct would change and that he would adequately provide for her support and maintenance and that of their two children; that they thereafter entered into an agreement providing both for a property settlement and the payment of a stated sum for her support while they were living together.

Section 51 of the Domestic Relations Law, which provides that a husband and wife cannot contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife ”, renders illegal an agreement under which a husband and wife agree to separate in the future or to relieve the husband of his support obligation. We have a completely different case, however, where the agreement is one of reconciliation entered into after the wife has brought an action for separation predicated on sufficient grounds. Under such circumstances, I see nothing wrong or impermissible with a contract in which the wife agrees to drop the suit and resume marital relations with her husband if she has left him (or, if they have not separated, to continue living with him) and the husband agrees in consideration therefor to pay his wife a specified amount for her support.

The same public policy which condemns agreements to separate actually favors those designed to effect a reconciliation and a restoration of the marital relation. We have said precisely this in Rodgers v. Rodgers (229 N. Y. 255, 258-259) and Adams v. Adams (91 N. Y. 381, 384; see, also, Brooklyn Trust Co. v. Lester, 239 App. Div. 422, 428; Sommer v. Sommer, 87 App. Div. 434, 436; Restatement, Contracts, § 585). In the Rodgers case (229 N. Y. 255, supra), where the husband and wife entered into a reconciliation agreement following her commencement of a divorce action, the court upheld the wife’s right to enforce the provision that she be paid $300 a month in consideration of her discontinuance of the suit and her promise to resume the marital relation. In the course of his opinion for a unanimous court, Judge Pound wrote (pp. 258-259):

“We think that the complaint is sufficient. The agreement set forth therein is not on its face against public policy. It is for the resumption of marital relations between husband and wife separated for cause. In the absence of proof, it may not be presumed that the wife’s grievance was unsubstantial. * * * The husband was not hiring a discontented wife, separated from him without good cause, to return to him. She was to be paid to give up her right to live apart from him. She did not return until she was assured of proper treatment as a wife and the court will not say to her that she sold her forgiveness and that ‘ conjugal consortium is without the range of pecuniary consideration.’ To apply such a rule to case's like this would be to discourage the reunion which the law should favor of couples unhappily parted. * * * The wife, when she returned to her husband, was entitled by law to her support. It cannot be presumed from the allegations of the complaint that such support was the equivalent of the allowance provided for her by the agreement of the parties.”

Thus, as the court observed, it may not be “ presumed ” that the support to which the wife is entitled is “ the equivalent ” of the allowance provided for her by the agreement. The stipulation as to amount may reflect nothing more than the husband’s assumption of an obligation “ supplementing ” the obligation of support “arising from the marital relation”. (Goldman v. Goldman, 282 N. Y. 296, 300.)

In short, the law does not and should not condemn agreements between husband and wife merely because it provides for specified payments to the latter while the parties are living together. If its purpose is to reunite the parties who have separated, or to keep them together if a separation appears imminent, the agreement should be upheld.

Garlock v. Garlock (279 N. Y. 337) requires no contrary conclusion. In the first place, since the agreement expressly recited that the sums paid by the husband under the agreement “ shall be in lieu of and in release of any and all obligations which the [husband] otherwise has or shall have to support and maintain [his wife] ” (p. 339), basis may exist for the claim that it violated the explicit prohibition of section 51 of the Domestic Relations Law. In the second place, as the court itself noted (p. 338), the parties entered into the contract “ Without any thought or idea of separation In no sense could such a contract be considered a reconciliation agreement or one looking toward a resumption of the marital relation.

I do not question the proposition that, if an agreement, or one of its provisions, induces a disruption of the marriage relationship, the agreement or offending provision should be stricken as illegal. Therefore, if the parties enter into an agreement with respect to the wife’s support in order to facilitate and bring about a separation in the future, the agreement obviously disrupts the marriage relation and should be held void. Similarly, if — as in the Garlock case (279 N. Y. 337, supra) — the agreement is made while the parties are living together without any thought of separating, basis likewise exists for invalidating it since it is impossible to ascertain whether or not the agreement has a tendency to disrupt the marriage. On the other hand, where, as here, the agreement is made when the parties are separated, or are on the verge of separating, and it actually provides for a resumption of the marital relation, it is perfectly evident that its support provisions can have no tendency to disrupt the marriage. In such a case, public policy, instead of being advanced to condemn the agreement, should be invoked to uphold it as valid.

In sum, an agreement of reconciliation which brings or keeps husband and wife together promotes the same high public policy as underlies section 51 of the Domestic Relations Law. Consequently, I agree with Judge Dye that we should sustain the agreement before us in its entirety, uphold the complaint a,s valid and affirm the order of the unanimous Appellate Division.

Chief Judge Desmond and Judges Burke, Foster and Scileppi concur with Judge Van Voorhis; Judges Dye and Fuld concur in separate opinions in each of which the other concurs.

Order affirmed, etc. 
      
      . More specifically, the exhibits attached to the complaint establish that the parties agreed that “unless and until” the wife shall institute an action for separation or a divorce “ and so long as she shall own and maintain the residence at 34 Bast 69th Street, and the said residence is available to their children * ** * he will pay to her for her personal use and maintenance” the sum of $37,500 a year. The husband also agreed that he would pay real estate taxes assessed against the property and that, as long as they live together and maintain a common residence, he would pay an additional amount of $10,000 “as his share * * * of their joint living expenses in maintaining a common residence and as his contribution toward the expense for food and employment of domestic help and all other expenses incident to their joint residence ”.
     