It is a mistake to consider that the moneys attached are alimony. A brief statement of the facts indicates clearly that the attachment should stand.
Anna W. Morris, in January, 1912, brought an action in the Supreme Court against Clara Lucas West, the plaintiff in this action, for enticing her husband away, and upon an affidavit that the said parties were living in adultery in the State of California, obtained an attachment which was levied by the sheriff upon the $60,000 interest which the said Clara Lucas West had in the estate of George West, which had been assigned to her November 10, 1909, by her former husband, FredH. West, a son of said George West, and upon $1,500 alimony payable to her and upon $200 due from him to her upon a note. No money or property was actually taken into the *466possession of the officer. The levy was made by serving the attachment, with proper notices and inventory, upon Fred H. West and the trustees of his father’s estate. This action was brought on the theory that all the interest the said Clara Lucas West had in said estate was a payment of $3,000 a year alimony, and that such alimony was exempt from attachment, and judgment was entered against the defendant herein that the $3,000 per year is exempt from attachment and in restraining. the defendant from levying upon any other installment thereof payable after January 20, 1912, with costs. The judgment appealed from purports to be a final determination of the action and awards final costs. In any event it is wrong, because it ignores the levy on the $200 note payable from said fund and ignores the levy upon the $60,000 interest which the present-plaintiff has in the estate of George West.
The interlocutory judgment of divorce in favor of the present plaintiff against her husband was dated December 11, 1909, and was entered two days thereafter. It does not appear when the action was brought.
November 10, 1909, her husband assigned to her $60,000 of his share in his deceased father’s estate, which interest was levied upon by the attachment herein. The value of his interest in his father’s estate does not affirmatively appear otherwise than that it yields an income of about $6,000 per year, which on a five per cent basis would represent .$120,000. The assignment purported to take effect immediately, and would carry with it the income on that fund accruing after its date, which at five per cent would be $3,000 per year, from which we infer that the husband had transferred to his wife one-half of his interest in the estate. On the eleventh day of December following she and her husband entered into an agreement reciting that an interlocutory judgment of divorce had been granted her that day and that it provides alimony of $3,000 per year, and the husband desires her to accept in lieu of alimony, after the 7th day of December, 1914, a gross sum of $60,000 in the manner provided for in the said assignment of November tenth. The instrument then witnesseth that in.consideration of a dollar to each party by the other paid the husband is to pay $3,000 per year alimony in semi-annual pay*467ments on the twentieth day of January and the twentieth day of July up to the 7th day of December, 1914.
The husband confirms the following instruments executed by him: (1) The assignment of the $60,000 of November 10, 1909; (2) a hill of sale of a Thomas automobile and other personal property; (3) three promissory notes given by him to her aggregating $4,000 and an assignment to her of $20,000 interest in his father’s estate as security for the notes; (4) a deed of real estate in Saratoga county known as the Fred West garage lot; (5) a bill of sale of a wagon and other personal property. In addition to which he is to pay all household hills and the rent of the premises occupied by her up to May 1, 1910. The 6th item of said agreement is: “ The party of the first part [this plaintiff] agrees to accept the payments and conveyances above described in full of all claims and demands against the party of the second part for alimony or otherwise, and the party of the first part expressly agrees to accept and receive said Sixty thousand dollars on the 7th day of Decemher, 1914, as a gross sum in lieu of alimony from and after the said 7th day of Decemher, 1914, in the manner provided by said conveyance made by said Fred H. West to said Clara L. West on the 10th day of November, 1909.”
The record indicates a friendly divorce made after a full final settlement. Apparently she was to receive $60,000 besides the other items mentioned in consideration of the divorce. The interlocutory and final judgment gave her no property rights which she did not have prior thereto. By the assignment she became the owner of $60,000 interest in the estate; the so-called alimony is $3,000, which represents the interest on that sum at five per cent. The alimony was to be paid until 1914, when the $60,000 was to he delivered over. The benefits purporting to come to her from the divorce, except the right to remarry and a freedom from her husband, she had secured before the interlocutory judgment. She is not in a position to question the legality of the assignment of November tenth. It was ratified by the subsequent agreement, and it was conceded upon the trial that it was executed and delivered on the day of its date and that there has been no paper against it or any changes in it so far as the attorney representing the plaintiff knew.
*468It is clear that the father’s estate was the sole reliance for the payment of the so-called alimony. The attorney representing the plaintiff in this action and. in the divorce action was one of the trustees of the estate. The semi-annual payments were to be made at his office, and the payments made were usually made by the check of the estate for the amount of the payment to the order of Fred H. West, he indorsing the check, and the delivery of the check to her by her attorney, the trustee.
To fully understand what the parties were doing, this agreement and the interlocutory judgment, which were signed the same day, must be'read together and considered as one transaction, and it then becomes clear that it was understood between the parties that the plaintiff should have no further property rights than those given to her by the agreement of November tenth. If, as suggested, We assume that, under the will of George West, Fred H. West is entitled to semi-annual interest on his share of the estate until 1914, when the corpus is to be paid over, and that nothing was to be paid to him prior to 1914 but interest, that emphasizes the fact that before the divorce was granted full financial arrangements were made between the parties and that the alimony provisions of the decree and the agreement of the same date were simply intended as further assurance for the payment of the moneys provided for by the agreement of November tenth. Reading the decree and the agreement of December eleventh together it becomes clear that her interest in the $60,000 is recognized as her property and that she is to have nothing from her husband aside from what he had transferred to her before a divorce was granted. The only effect of the agreement of December eleventh upon the agreement of November tenth is, that it recognized that for some reason the corpus of the $60,000 is not to be paid to the wife until 1914, but that she is to have an amount equivalent to the interest thereon. In other words, it is recognized as hers, but the date of the final payment is postponed.
• Alimony is usually a sum granted by the .court to the wronged wife to provide the support her husband owes her. This is not such a case. The attachment in question is based upon a cause of action in favor of Mrs. Morris against the pres*469ent plaintiff for enticing away and living in adultery with Morris, her husband. The papers indicate that this plaintiff and Morris were living in adultery at her home in Saratoga Springs on the day after the interlocutory judgment was signed, and since then have left the State and are living in adultery outside the State. She was not only not entitled to the divorce, but was violating the criminal law of the State at the time it was granted. Her conduct is so gross that the court is not called upon to draw fine distinctions in her favor. If the facts as they existed had actually been known to the court, the interlocutory and final judgment would not have been granted. The whole matter of a divorce was apparently a matter of previous adjustment and settlement between the parties. It was a divorce which the law does not favor, and in interpreting the decree the court will construe it with reference to the papers executed at the same time and on the faith of which the decree was obtained. Under all the circumstances of the case as disclosed from the record the court will consider the funds attached as the property of the plaintiff irrespective of the decree, and will not permit the plaintiff the use of the injunctive order of the court to continue her wrongs against the attachment creditor.
There is no warrant for treating the $60,000 assigned by the agreement of November tenth as alimony. It is payable in bulk in 1914 and was her property before the interlocutory judgment and perhaps before action brought. The judgment is clearly wrong so far as it vacates the attachment with reference to that fund. It does not in terms do so, but the interlocutory judgment provides for a perpetual payment of $3,000. The agreement at the worst modifies the interlocutory judgment and makes a settlement in gross for $60,000. That sum is clearly attachable. In my judgment calling the income, which is to be paid semi-annually, alimony instead of interest does not change its character and render it exempt.
I favor a reversal of the judgment upon the law and the facts and a judgment dismissing the plaintiff’s complaint, with costs.
Judgment affirmed, with costs.