#### Jane R. Lawrence, Respondent, *v.*Allan Lawrence, Appellant.

(Supreme Court, Appellate Term,

October, 1900.)

Husband and wife — Invalid separation agreement — City Court of New York has no equitable jurisdiction.

An agreement made in 1888, without the intervention of a trustee, by a husband and wife between whom an action of divorce was then pending, but who were not then living apart, by the terms of which the husband agreed to make her certain payments for her support and that of their children, is not authorized by chapter 881 of the Laws Of 1884 and is absolutely void at law.

*504Where the wife sues at law upon the agreement in the City Court of the city of New York, she cannot invoke equity to assist a recovery, not only because that court has no equitable jurisdiction, but also because no equitable consideration for the agreement appears.

Lawrence v. Lawrence, 31 Misc. Rep. 646, reversed.

Appeal from a judgment and order of the General Term of the City Court of the city of New York, affirming a judgment rendered at Trial Term.

Francis C. Devlin, for appellant.

Robert Hazet, for respondent.

O’Gorman, J.

On April 23, 1888, while an action for divorce-was pending in the Supreme Court of this county between the parties to this action, they entered into an agreement without the intervention of a trustee, whereby the defendant agreed to pay to the plaintiff, for the support of their children, fifteen dollars a month, such payments to continue until the younger of their two-children attained the .age of sixteen years, the wife on her part releasing her husband from all claims for her support. The period covered by this agreement expired in September, 1895, at which time there was a balance due under the contract of $315, to recover which this action was brought. The judgment rendered for the plaintiff was affirmed at' the General Term of the City Court, and from such affirmance the defendant takes this appeal. The action for a divorce pending at the time of the execution of the agreement was abandoned, and a new action was. thereafter commenced, and proceeded to a decree of absolute divorce, which was granted to the plaintiff on October 31, 1891, the decree, however, making no provision for alimony.

The judgment in this case is assailed chiefly upon the ground that the enforcement of the contract in suit, the same being between- husband and wife, is contrary to public policy, and the-agreement absolutely void. It is also urged that the contract became merged in an order made on May 12, 1888, in the Supreme Court action then pending, which modified an order of April 17, 1888, and required the defendant to pay the plaintiff fifteen dollars a month alimony *pendente lite,*instead of twenty-five dollars a month, as provided in the previous order of April 17, 1888. With this latter contention we do not agree, because, if the agreement was valid at the time of its execution, it survived the entry *505of the order of May 12, 1888, as well as the entry of the judgment entered in the second action for a divorce. Clark v. Fosdick, 118 N. Y. 7.

The only question requiring consideration, therefore, relates to the validity of the contract. It is a well-established doctrine of the common law that a contract between husband and wife is absolutely void at law, although it may, under some circumstances,, be sustained in equity; but where equity thus interferes to uphold a contract between husband and wife, an equitable consideration must be shown either upon the face of the instrument, or by extraneous proof. Dean v. Metropolitan El. R. Co., 119 N. Y. 547. This is still the settled law in this State, except where modified by the enactment of the married woman’s statutes. Hendricks v. Isaacs, 117 N. Y. 416; Poillon v. Poillon, 29 Misc. Rep. 666; 49 App. Div. 341; Whitney v. Whitney, 4 id. 598. At the time the agreement was made, chapter 381 of the Laws of 1884 was the law applicable to this case, and it is quite clear that that statute did not relieve a married woman from the disabilities of' coverture to the extent of permitting her to contract with her husband. The court below recognized the existence of the rule respecting the inability of the husband and wife to make a contract valid at law, but expressed the opinion that it was a case-calling for the equitable intervention of the court. It is a sufficient answer to this view to observe that the plaintiff took no such position either by her pleading or upon the trial. Moreover, to treat this controversy as an equitable action was to oust the court below of jurisdiction, because the City Court has no jurisdiction of actions in equity. Blewitt v. Olin, 13 N. Y. St. Repr. 76; Gutman v. Rogers, 13 N. Y. Supp. 891. On this appeal the respondent seeks to distinguish the case before us from Poillon v. Poillon, *supra,*claiming that the contract in suit was made after the parties had separated. Without deciding whether such a circumstance could give validity to the contract — although we are of the opinion it could not, except through the intervention of a trustee (Galusha v. Galusha, 116 N. Y. 642) — the record fails to disclose that the parties were not living together at the time this contract was made. The authorities cited by the respondent are easily distinguishable from the case before us. In Clark v. Fosdick, 118 N. Y. 7, the agreement embraced a trust provision. In Carpenter v. Osborn, 102 N. Y. 552, an attempt was made to *506impeach collaterally a judgment rendered on a contract between husband and wife. In Pettitt v. Pettitt, 107 N. Y. 677, the parties were separated before the making’ of the contract, and the case was a proper one for equitable relief. The contract in question, being absolutely void at law, was incapable of enforcement in this action, and the judgment of the court below must be reversed.

Beekman, P. J., and Giegerich, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.