The plaintiff is the wife of defendant. Pridr to the 17th day of October, 1900, they were living apart-,, and the plaintiff had begun an action in the courts ■ of New Jersey for a legal separation. On that -day the defendant in this State entered into a written contract with the plaintiff to assign to .her securities aggregating approximately $10,000 and to pay to her in addition to the income arising therefrom for the support of herself and .children such a sum as would make $1,000 per annum. The‘securities were assigned, but the. defendant failed to pay the difference between the income and the $1,000, arid the first cause of action set out in the complaint seeks to recover therefor.
The" defendant insists that the agreement is void as against public policy. If it were a mere contract between á husband- and wife, then living together .to separate and live apart in -the future* -this would-be true. ' It would then be an agreement practically dissolving the marriage relation,; and one which the law does not permit, (Whitney v. Whitney, 4 App. Div. 597.) But in the present case the separation had already taken place. An action was pending to obtain decree of limited- divorce. Where a separation exists as a fact and is not produced or occasioned by the contract, an agreement that the parties will continue to live apart and that the husband will pay a certain sum, for the maintenance of his wife and children, is valid and can. be enforced. (Pettit v. Pettit, 107 N. Y. *547677 ; Galusha v. Galusha 116 id. 635 ; Lawson v. Lawson, 56 App. Div. 535.)
The defendant furthier claims that the contract is invalid because it was made between, the husband and wife without the intervention of a. trustee. We are of the opinion that this omission does not invalidate it. It is true that in most of the eases in which the courts have passed upon contracts of this character, the contracts were made with a trustee for the benefit of the wife. Eo trustee appears to have been employed in Pettit v. Pettit (supra) or Lawson v. Lawson (supra), and in each of these cases the courts expressly decided that the contracts were valid, there having been an actual separation before their execution. There was no trustee in Hungerford v. Hungerford (161 N. Y. 550), nor was the agreement set aside Upon that ground. In Poillon v. Poillon (49 App. Div. 341), decided by this court, the agreement was t held void because the separation was in pursuance of the contract, but the question as to whether or not its validity depended upon the intervention of a trustee was expressly reserved and not passed upon.-
Section 21 of the Domestic Relations Law (Laws of 1896, chap. 272) confers broad powers upon the wife to contract in respect to ■her separate affairs even with her husband, and the only prohibition is against those contracts seeking to alter or dissolve the marriage or to relieve the husband from liability to support hel\ The present contract did not purport-to alter or dissolve the .marriage relation as it existed at the time of its execution, nor was its purpose to relieve the husband from liability to support his wife, but rather in compliance with that duty and in furtherance of his obligations in that regard. But we do not place our decision on the ground that this section of .the Domestic Relations Law gave to the plaintiff the right to .make the contract in controversy. She had that right, as we read the decisions, at the time the law was enacted, and it was not taken away .from her by it. The enactment, so far as this section is involved, was but a codification of the statute law as it then existed) and as interpreted by the decisions of the courts.
Many contracts between husband and wife have been held valid and binding upon both. The husband may emancipate her, either . by express or implied agreement, and give her the right to labor on' her own account and receive the compensation therefor. (Carver *548v. Wagner, 51 App. Div. 47.) If lie has given a note to her she may enforce payment in an action at law against him. (Adams v. Adams, 24 Hun, 401 ; Granger v. Granger, 2 N. Y. St. Repr. 211.) If either party has taken -property belonging conclusively to .the other, an action in replevin maybe brought. (Howland v. Howland, 20 Hun, 472 ; Berdell v. Parkhurst, 19 id. 358.) Even where a trustee* is named in an agreement made after separation, the wife may 'bring an action ,at law to enforce its provisions (Potter v. Potter, 8 Civ. Proc. Rep. 150) and especially where the trustee refuses to bring it. (Lord v. Lord, 68 Hun, 587.) So, too, she may sue to collect alimony allowed by a judgment of divorce obtained in a foreign State. (France v. France, 79 App. Div. 291.)
While the holdings referred to do. not directly'involve the question tinder consideration the principle underlying, them all shows that there are many matters concerning which a. wife may make an agreement with, her husband, valid and binding, Without the intervention of a third party. Many expressions may be. found in the books that the common-law' doctrine that the husband and wife cannot contract with each other, and that she cannot sue .him in an action at law has- not been changed by any legislative enactments. The test of the accuracy of the statements is the decisions in- which contracts between them without intervention of a. trustee-have been held valid and in which she has been permitted to- bring an action at law against him. In Manchester v. Tibbetts (121 N. Y. 219) the court says : “ When the wife by proper and sufficient proof shows that her husband owes her, she is entitled" to the -same remedies, and has the same' standing to enforce any security for the payment of the debt that she may have received as any other creditor.”
Our conclusion is that the contract sued on was valid, and that an action lies in behalf of the plaintiff to enforce it.
The proof was ample -to sustain the finding of the court below that the -separation was not merely temporary. ' While the contract foreshadows the fact that po'ssibly. the defendant might, at some future time, return to-his family, the facts show that that time has not arrived and that it was not-really contemplated that a reconciliation would soon occur. We -also think the plaintiff was entitled -to-recover upon her second cause of action for the board of deferidant’s daughter by. a former marriage. The plaintiff testified to an *549express agreement by defendant, which he partially admits, to pay, and payments had been made for two years thereunder. It was immaterial that the daughter became of age during the period. The defendant had a right to support her after that time if he saw fit. At least he should have apprised the plaintiff of the fact that their agreement was at an end.
Nor was there any error in the admission •''of evidence. The plaintiff testified that she was familiar with the price of board, and upon the defendant objecting to the form of the question it was changed, and she testified, without objection, that a reasonable sum was five dollars per week, for which she had recovery. The defendant objects that! the plaintiff has made no accounting with respect to the income derived from the securities transferred to her. A formal accounting was not a necessity. She testified as to the amount of income received from the-securities, and recovered the difference between that amount and the $1,000 stipulated to be paid, and the defendant made no proof that this difference was too great.
We think the recovery was proper and that the judgment should be affirmed, with costs. ,
O’Brien, P. J., McLaughlin and Laughlin, JJ., concurred; Patterson, J., dissented.
Judgment affirmed, with costs.