#### Esther Jennie Johnson, Respondent, *v.*Wilbur C. Johnson, Appellant.

Second Department,

May 29, 1913.

Husband and wife — separation agreement — failure to provide for support of child — action by wife to recover for moneys expended for maintenance of child — equitable counterclaim asking reformation of instrument — relief by independent suit — stay.

Where a wife having through the medium of a trustee entered into a separation agreement with her husband, whereby he agrees to pay her a certain sum for support and maintenance in lieu of alimony, said agreement not providing for the support and maintenance of a child, brings an action to recover sums expended for the maintenance of the child, the husband cannot plead as a defense or as an equitable counterclaim that the agreement was intended to include the support of the child but the same was omitted by mutual mistake and ask for the reformation of the contract upon the ground of mutual mistake.

Such equitable counterclaim cannot be asserted although the plaintiff makes no objection to the defect of parties and although the defendant asked that the trustee be made a party, if necessary.

The defendant, *it*seems, must seek relief in an independent suit to reform the agreement, and in the meantime he may apply for a stay of the plaintiff’s action until the equitable issue is heard and determined.

Appeal by the defendant, Wilbur 0. Johnson, from, an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of March, 1913.

*James S. Darcy [Henry Smith*with him on the brief], for the appellant.

*E. Crosby Kindleberger,*for the respondent.

*290Burr, J.:

On April 22, 1902, a tripartite agreement was entered into between plaintiff, defendant and John F. Carson, as trustee of plaintiff, in accordance with which plaintiff, defendant’s wife, has been living separate and apart from him. By the terms of this agreement defendant was to pay “for and towards the better support and maintenance of his said wife the sum of Twenty-five dollars at the beginning of each and every week ” Plaintiff agreed to accept such sum “in full satisfaction for her support and maintenance and all alimony whatever. ” Plaintiff admits that she has' received the sum agreed to be paid. There was one child, a daughter, the issue of the marriage between plaintiff and defendant. No mention of or reference to said child is contained in said agreement. In her complaint plaintiff alleges that since January 10, 1901, she has expended for the board, shelter, clothing and education of said child the sum of $3,500, for which she seeks recovery.

It may be that if defendant has omitted to provide for his daughter’s support and maintenance, and if plaintiff establishes that she has necessarily expended the sum named for the purpose designated out of her own estate, defendant will be held liable. *(De Brauwere*v. *De Brauwere,*203 N. Y. 460, affg. 144 App. Div. 521.) Where, however, a father has entered into an agreement with a person to support his child for a specified sum, as to that person at least the terms of the contract control until impeached or set aside. *(Galusha*v. *Galusha,*138 N. Y. 272.) Defendant asserts that such a contract was entered into between himself and plaintiff; that the separation agreement above referred to was intended to contain a provision that the sum of twenty-five dollars a week, which he was to pay plaintiff, was to be used not only for her support, but also for the support and education of said child, and that, pitending to express the same in said agreement, by mutual mistake of the parties thereto it was omitted therefrom. Pleading these facts, both by way of defense and as an equitable counterclaim, defendant asks to have the said agreement reformed to express the real intent and meaning of the parties thereto. The reply denies the allegations contained in the answer by way of counterclaim and also pleads the Statute of *291Limitations. After issue j oined defendant moved for a separate trial at Special Term of the issues raised by the counterclaim in his answer and the reply thereto and also asked that the trial of plaintiff’s cause of action be stayed until the determination thereof. From an order denying said motion defendant appeals.

If defendant by the interposition of an equitable counterclaim to plaintiff’s cause of action could raise the questions which he has sought to raise thereby, we think that the motion should have been granted as matter of right (Code Oiv. Proc. § 974; *Thomas*v. *Bronx Realty Co.,*60 App. Div. 365; *Goss*v. *Goss & Co.,*126 id. 748; *Wasserman*v. *Taubin,*129 id. 691; *Rubenstein*v. *Radt,*133 id. 57), but, if not of right, in the exercise of a wise discretion. *(Pemberton*v. *McAdoo,*149 App. Div. 20; *Smith*v. *Western Pacific R. Co.,*144 id. 180; affd., 203 N. Y. 499.) The facts pleaded by defendant are not available as a defense to plaintiff’s cause of action. If defendant’s signature to the agreement referred to had been obtained by fraud then he would not be controlled by its provisions, because it was not his contract, and that defense would be open and available to him in any action at law brought thereon. *(Bennett*v. *Edison Electric Iluminating Co.,*164 N. Y. 131.) If the opinion in that case, written at the Appellate Division, leaves it in doubt whether defendant’s contention was that the written contract there considered followed fraud or mutual mistake *(Bennett*v. *Edison Electric Iluminating Co.,*18 App. Div. 410), the opinion in the Court of Appeals clearly indicates that it was based upon fraud alone. The same learned justice who wrote for this court in *Bennett*v. *Edison Electric Rluminating Co.,*writing for a unanimous court in *Thomas*v. *Bronx Realty Co. (supra),*pointed out the distinction between a case where it was claimed that a written contract in its existing form was the result of fraud, and one where it followed mutual mistake, in language as follows: “We are of opinion that the pleading constitutes an equitable counterclaim under the provisions of section 974 of the Code of Civil Procedure, and under its provisions the defendant is entitled to the trial of such issue at the Special Term. Nothing which appears in *Bennett*v. *Edison Electric Ill. Co.*(164 N. Y. 131) conflicts with this view. The coun*292terclaim averred in that action asked for the reformation of the contract sued upon, on the ground that defendant had been induced to execute the same through fraud practiced upon it, and this, if found as a fact, was available to defendant as a defense. It needed no reformation of the contract, because, if the allegations of the answer were true, all basis for the action would fail as there would exist no valid contract between the parties. In the present case, however, as the contract sued upon is complete upon its face, the plaintiff shows himself entitled to recover. The effect, therefore, of the averments in the counterclaim is to show the omission of matter which constitutes a part of the agreement between the parties, and which, if true, will furnish a complete answer to the. plaintiff’s claim for damages for the breach. Without this reformation, defendant may not avail himself of such matter as a defense. It is, therefore, evident that he is entitled to a trial of this issue at Special Term.” In *Pemberton*v. *McAdoo (supra)*the wisdom of directing not only a separate but a prior trial of such issues is pointed out in these words: “It is manifest that if such a

trial should be had and should result favqrably to defendant, this litigation would be at an end and there would be no occasion for going into the probably long and involved trial of the other issues.”

The difficulty with appellant’s position, however, is that he cannot avail himself of any right that he may have to a reformation of this contract upon the equitable ground of mutual mistake in this action. A counterclaim “ must tend, in some way, to diminish or defeat the plaintiff’s recovery, and must be one of the following causes of action *against the plaintiff, *** * and in favor of the defendant, * * * between whom and the plaintiff a separate judgment may be had in the action.” It must also be “1. A cause of action arising out of the contract or transaction, set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action. 2. In an action on contract, any other cause of action on contract, existing at the commencement of the action.” (Code Civ. Proc. § 501.) Manifestly this counterclaim is not included in the classification under subdivision 2 of that section. It is not necessary for us *293to decide whether defendant’s cause of action to reform the separation agreement is one “connected with the subject of the action ” brought by plaintiff. The cause of action is not one against the plaintiff alone, nor may a separate judgment be had thereon between defendant and plaintiff. There is a third party to the separation agreement, the trustee named therein, who is a necessary party to any action brought to reform the same. *(Calusha v. Calusha, supra.)*

Nor does the failure to raise the objection of a defect of parties on the part of the plaintiff alter the situation. In the case last cited, the court, speaking of the necessity to make the trustee a party to an action of that character, said: “If an action were directly brought to set aside the deed without making him a party, it would be the duty of the court, upon its own motion, to stay its prosecution until he could be brought in, even if the non-joinder was not pleaded.” (See, also, *McCulloch*v. *Yibbard,*51 Hun, 227; *Spofford*v. *Rowan,*124 N. Y. 108.) It is true that in the prayer for relief, contained in defendant’s answer, he asks that “if necessary said John F. Carson, as trustee, may be made a party to this action.” But if plaintiff’s cause of action is complete against defendant alone, against her objection the court has no power to compel another party to be brought in who would be neither a necessary nor appropriate party to the determination of plaintiff’s cause of action in order to enable defendant to litigate an independent cause of action, even though it might be connected with the subject-matter of plaintiff’s claim. Defendant must seek relief by an independent action, and not by the interposition of an equitable counterclaim in his answer.

It follows, therefore, that the order must be affirmed, with ten dollars costs and disbursements, but without prejudice to an application by defendant to this court at Special Term to stay the trial of this action until such equitable action is heard and determined, provided it is seasonably brought.

Thomas, Carr, Rich and Stapleton, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements, but without prejudice to an application by defendant to this court at Special Term to stay the trial of this action until an equitable action is heard and determined, provided it is seasonably brought.