The parties to this separation suit, married in 1924, separated early in 1945, and in May of that year entered into an agreement pursuant to which the husband was to pay the wife $100 a week for her maintenance and support (paragraph fourth). It was further agreed that "in the event the Wife shall engage in a retail business in the City of New Rochelle, Westchester County, New York, similar to that conducted by the Husband under the name of Haas Linen Shop, either as owner, part owner or stockholder, her right to alimony shall be suspended so long as she is so engaged" (paragraph eighth). *Page 71
In July of 1945, Greentree Linens, Inc., of which the wife's sister was president and the latter's husband, treasurer, was organized to carry on the same sort of business in New Rochelle as the husband conducted; the wife was employed by the corporation as manager at a salary of $60 a week and, although she does not appear to have been stockholder, director or officer, apparently ran the enterprise. The husband discontinued his weekly payments for her support. The wife commenced this suit for a decree of separation based upon charges of nonsupport — with which this appeal is concerned — and of cruelty. The husband defended on the ground that, by reason of the provision above quoted, he was entitled to terminate those payments without being charged with nonsupport.
The courts below have dismissed the complaint, holding that the clause relied upon is valid and enforcible. We reach a contrary conclusion. Whether or no it may be said that plaintiff's activities and status as manager of the corporation brought her within the fair scope and intendment of the terms, "owner, part owner or stockholder", it is our judgment that the eighth paragraph offends against the public policy of the State and is illegal.
The obligation of the husband to provide for his wife springs from the marital relationship itself, and, while perhaps not susceptible of exact definition or precise measurement, requires the husband to support her in conformity with his condition and situation in life. (See Garlock v. Garlock, 279 N.Y. 337,340-341; Rodgers v. Rodgers, 229 N.Y. 255.) That duty, the Domestic Relations Law makes clear, may be neither avoided nor diminished. Section 51, insofar as pertinent, 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." By such statutory prohibition, husband and wife are stripped of power to relieve the former of his obligation; both are rendered incapable of bargaining away the woman's right to the man's support.
The broad foundation in which the statutory rule is imbedded is the uncompromising determination of the State to preserve the important incidents of the marriage relationship during its continuance whatever the contrary sentiments of the parties themselves may be. This court, pointing to the State's deep *Page 72 interest in the matter, recently declared that "every agreement between husband and wife must be viewed in the light of this continuing interest of the State." (Kyff v. Kyff, 286 N.Y. 71,74.) They may, if separated, enter into an agreement "for regular, substantial, periodic payments" to the wife as a measure of the husband's continuing obligation to support her. (SeeJackson v. Jackson, 290 N.Y. 512, 516; Goldman v.Goldman, 282 N.Y. 296, 300-301.) But, such an agreement aside, contracts which entirely or partially exonerate the husband or which "release" him from his obligation or "diminish it" are condemned as void. (Goldman v. Goldman, supra, p. 299; see, also, Jackson v. Jackson, supra, pp. 516-517; Matter ofRhinelander, 290 N.Y. 31, 37; Garlock v. Garlock, supra, p. 340; Manufacturers Trust Co. v. Gray, 278 N.Y. 380, 386;Tirrell v. Tirrell, 232 N.Y. 224; Third Nat. Bank v.Guenther, 123 N.Y. 568, 576; Leeds v. Leeds, 265 App. Div. 189,191; Rubinfeld v. Rubinfeld, 264 App. Div. 888, appeal dismissed 289 N.Y. 838; Mabbett v. Mabbett, 197 App. Div. 654,655; Stone v. Stone, 173 Misc. 774; Moore v. Moore, 59 N.Y.S.2d 22, 23.)
This court has ever been alert "to enforce that statute [§ 51] and to strike down any agreement fairly within its intendment." (Matter of Rhinelander, supra, p. 37; cf. Weiman v. Weiman,295 N.Y. 150, 154.) However artful the terms of the agreement, however veiled the design to terminate the husband's obligation, contrary to the mandate of section 51, the attempts are doomed to failure. Thus, a husband may not purchase enduring exemption either by payment of a lump sum (Jackson v. Jackson, supra, pp. 516-517; Kyff v. Kyff, supra, p. 74) or by payments of installments over a limited period of years. (Rubinfeld v.Rubinfeld, supra.) And an agreement will be stricken that either calls for support only until a child of the marriage becomes twenty-one or sooner marries or dies (Leeds v. Leeds,supra); or excuses such support "due to the fact" that the wife "is gainfully employed and agrees * * * to maintain and support herself" (Moore v. Moore, supra); or requires the wife to "assume and pay all the expenses of supporting the family." (Third Nat. Bank v. Guenther, supra, at p. 574.)
Turning to the provision upon which defendant relies, there can be no doubt that it was designed to accomplish what section *Page 73 51 forbade. Whatever may be the amount which represents the fair measure of support owed by husband to wife in any particular case, it is evident that its payment may not be made to depend entirely upon the subsequent conduct of the wife, at least when not fairly or reasonably related to the marriage relationship. (Cf. Duryea v. Bliven, 122 N.Y. 567.) In the present case, defendant was to be relieved from all liability to support plaintiff if she engaged in the retail linen business in New Rochelle, and that immunity of his was to endure, perhaps for life, regardless of how little his wife realized from the business. His freedom from her competition, the agreement indicates, was valuable to him. However, it could not have been so valuable as to equal the amount of support agreed upon, for in such a case, it would be necessary to indulge the conclusion — without warrant — that the amount thus agreed to be paid qua alimony was actually for the wife's refraining from competing; if that were so, the agreement would be illegal upon the ground that it failed to provide any measurement of defendant's obligation of support. On the other hand, if freedom from such competition was worth less than $100 a week, the offending provision demonstrates an intention that defendant should be released not only from the payment agreed upon to induce his wife not to compete, but, in addition, from the payment agreed upon for her support. That obviously may not be done.
The parties, we assume, might have fixed an adequate measure of support and then added a condition providing for extra payments if the wife refrained from engaging in a competing enterprise, for then there would have been no agreement absolving the husband from his obligation. As written, however, the provision relieved defendant of his duty to support plaintiff and violated both the letter and spirit of section 51.
The eighth paragraph of the agreement was, therefore, void and, since it does not afford the husband a defense, dismissal of the complaint could not be predicated upon that provision. It is not now necessary either to consider or pass upon the effect which that clause has upon the agreement as a whole or upon any other of its provisions.
The judgments should be reversed, and a new trial granted, with costs to the appellant in all courts to abide the event. *Page 74