Susan E. Reardon, as Trustee of Irene J. Woerner, and Irene J. Woerner, Respondents, v. Charles H. Woerner, Appellant

Susan E. Reardon, as Trustee of Irene J. Woerner, and Irene J. Woerner, Respondents, v. Charles H. Woerner, Appellant. Second Department, March 2, 1906. Husband and wife — husband’s contract for support after separation is enforcible—Jurisdiction of Municipal Court of Hew York. The rule that the contract of a husband to support his wife made after a separation is enforcible was not altered by section 21 of the Domestic Belations Law providing that a husband and wife cannot contract to relieve the husband from his liability to support his wife. An action on such contract is not necessarily in equity and the, Municipal Court of the city of -Hew York has jurisdiction. Appeal by the defendant, Charles H. Woerner, from a jndg-. ment of the Municipal Court of the city of Mew York, entered in the office of the clerk of said court overruling a demurrer to the complaint. This was an action in- the Municipal Court of the city of Mew York to recover installments which had become due on a contract by the defendant for the support of his jvife. / The contract was made in 1904 after the separation of the husband and wife, and is the usual one through the intervention of a trustee for the wife. The husband agrees to pay ten dollar’s a week to the trustee for the’ support of his wife, and the trustee and the wife agree to save him harmless from any other claim or liability for the support of his wife. ■ The defendant demurred, first, on the ground that the complaint did not state facts sufficient to constitute a cause of action; second, that the court had no jurisdiction of the subject-matter of the action. Joab H. Banton, for the appellant. , W. Coleman Hughes, for the respondents. [MAJORITY — Gaynor, J.:] Gaynor, J.: It is too well known among us that such a contract has long been held to be valid to call for the citation of authority. It has of late been held, however, in the case of Carling v. Car ling (42 Misc. Rep. 492). that the provision at the end of section 21 of the Domestic Relations, Law (Laws of 1896, chap. 272), that “a husband and wife can not contract to alter or dissolve the marviage, or to relieve the husband from his liability to support his wife,” changes the law and makes such a contract illegal, in that it .may secaré to a wife less than she might be able to get by going to law, and relieve the husband. of his liability to that extent. . I do not see how we can acquiesce in this view. Substantially the same provision is to be found in chapter 594 of the Laws of 1892, which amends the act of 1884 (Chap. 381) in relation td the rights and liabilities of married women, and such an effect was never-claimed for it. If is quite manifest that the Legislature had no such, intention. r The contention, that only a suit in equity, and not an action at law, can arise upon,the contradi, and that the court below was without jurisdiction inasmuch as it has no jurisdiction of suits in equity, has no foundation. . The judgment is affirmed, with costs. , Hi-rsohberg, P. J., Woodward, Jbnks and Hooker, JJ., concurred. Judgment of the Municipal Court affirmed, with costs.