This is an appeal from an order overruling defendant’s demurrer to the complaint upon the ground that there is a defect of parties defendant, and also that the complaint does not state facts sufficient to constitute a cause of action.
The action is brought by the plaintiff to recover of the defendant the sum of $29,600, plus $7,576 interest, balance claimed by plaintiff her due upon a three-party contract entered into April 7, 1909, between James M. Rodgers, plaintiff’s husband (now deceased), the plaintiff, and the defendant, John C. Rodgers. Plaintiff’s husband died February 6, 1917. Prior to the making of the contract, for an alleged breach of which plaintiff seeks to recover herein, an action was pending between plaintiff and her said husband for an absolute divorce by reason of the misconduct of plaintiff’s husband. On April 7, 1909, in consideration of the discontinuance of such action and of plaintiff’s agreement to again live and cohabit with her husband, the defendant in this action and the said husband entered into a written agreement with the plaintiff, a copy of which is annexed to the complaint. This agreement recited the relationship of the parties, and that unhappy difficulties had arisen between them, and as to the pendency of the action for absolute divorce; and that the husband and the father-in-law, the defendant herein, were desirous of obtaining a discontinuance of the action which plaintiff had brought for a divorce, and *82of inducing plaintiff to again cohabit with her said husband and to start their married life anew, and that the party of the first part had made a detailed affidavit, verified on April 1, 1909, denying all charges of infidelity against him and promising at all times in the future to be a faithful, kind, true and devoted husband; and wherein it was further recited that it was desired by all parties to the agreement that the' plaintiff herein should be assured a regular income during the balance of her fife. In consideration of such premises and the promises and agreements therein contained, it was agreed by the plaintiff herein and in that action that she would discontinue the action for a divorce and that she would again cohabit with her said husband, so long as he and the defendant herein should faithfully carry out and perform the said contract, and so long as the said husband should fulfill the promises contained in said affidavit and conduct himself as a true, kind, faithful, devoted and loving husband. It was further agreed that at an early date the plaintiff and her said husband should take a three months’ trip abroad. It was further therein agreed that the household effects on the premises theretofore occupied as a residence by the plaintiff and her said husband and all ornaments, books, pictures, silver, furniture, bric-a-brac and furnishings and all property in their said home, except the personal wearing apparel of her husband, should be the property of this plaintiff. It was further therein stipulated and agreed that if this plaintiff should at any time thereafter consider that she had a cause of action against her said husband for a separation or an absolute divorce, she might bring such action, and in which event she should have the sole care, custody and control of any child or issue of said marriage, plaintiff to be the sole judge as to whether she had such cause of action against her said husband. It was further agreed in and by said instrument, executed by the said plaintiff with her said husband and father-in-law, that so long as plaintiff should live, either with her said husband or separate from him, and irrespective of whether she should bring an action against her said husband for an absolute divorce or a separation, plaintiff would be paid on the first of each month the sum of $300, dating from April 1, 1909, and it was expressly understood and agreed that such *83payments should not be affected by the death of either plaintiff’s husband or his said father, but should continue so long as plaintiff should live; and that in the event of the bringing of an action by either the plaintiff or her husband against the other for a separation or divorce, the said sum of $300 should be considered as alimony, without prejudice, how-over, to the plaintiff’s applying to the court for an increase thereof. It was further agreed that plaintiff’s husband and his said father should pay to the attorney for plaintiff in her divorce action said attorney’s fees for all proceedings therein and negotiations resulting in and the execution and delivery of the said agreement executed by the parties. The aforesaid affidavit made by plaintiff’s husband was made a part of said agreement, and was. therein reaffirmed by said husband. It was further stated in the written agreement that the same should bind the respective parties thereto and the respective heirs at law, next of kin, legatees, devisees and legal representatives of plaintiff’s said husband and of his father, the defendant in this action.
In her complaint, the plaintiff alleges that, pursuant to said agreement thus entered into, she discontinued her action for an absolute divorce and resumed her married life with her said husband and continued to live with him until his death, which occurred on February 6, 1917, and that she has duly performed all the conditions on her part under the terms of said agreement. Plaintiff further alleges that the defendant has failed, neglected and refused to comply with the terms of the agreement aforesaid in that he has failed to make said monthly payments of $300, none of which payments have been made by defendant to the plaintiff, as she alleges, except the sum of $1,900 paid to plaintiff by said defendant at various times between the time of the execution of said contract and the 1st day of March, 1915, and that there is now due and owing from the defendant to the plaintiff the balance of said monthly payments, amounting to $29,600, besides interest, amounting altogether to the sum of $37,176.
As before stated, defendant has demurred to plaintiff’s complaint upon the ground that there is a defect of parties defendant, and on the further ground that the complaint does not state facts sufficient to constitute a cause of action,
*84It is the contention of the appellant that the contract upon which plaintiff seeks to recover herein was void as being against public policy. I can see no force to this position. The plaintiff had brought an action and, presumably, at least, she believed that she had grounds upon which to ask a dissolution of her marriage. Her husband and her father-in-law were interested in avoiding such a proceeding and its consequences, and entered into the agreement whereby the husband promised to mend his ways and to thereafter live and cohabit with the plaintiff in a proper and becoming manner and in accord with his marriage vows. All of the parties appreciated the desirability of plaintiff’s having a separate settlement and income aside from the support to be furnished by the husband, and it was, therefore, agreed, in consideration of the relinquishment by plaintiff of her cause of action by reason of her husband’s misconduct, that the husband and his father should pay to the plaintiff monthly the sum of $300. While this was a joint agreement, and, if plaintiff had sought to enforce it during the lifetime of her husband, undoubtedly the latter would have been a necessary party, the husband having died, the surviving joint obligor becomes liable, subject to a motion, if desired, to bring in the husband’s personal representatives as parties defendant. It would seem to me that such a contract should be entirely in accord with public policy, and that it was a most desirable thing to reunite this husband and wife in furtherance of their marital vows. If it should transpire that the husband left an estate, and it should be established that plaintiff had not been paid the moneys provided by the contract, a contribution from the husband’s estate could be compelled by the defendant for one-half of what he is required to pay under the terms of the contract. The agreement itself was under seal, and that fact imports a consideration as to all of the parties executing it. The defendant was deeply interested in the welfare of his son and his well-being. He was likewise personally interested in the well-being of his grandchildren, and that they should be reared by a father and mother living in harmony. I think there was ample consideration so far as the defendant was concerned. I think we can almost infer from the relationship of the parties and that the covenants of the defendant alone *85lent substance to the contract, and that without defendant’s obligation, plaintiff would have been in no position to have received any substantial benefit from the contract. Presumably she would not have made the contract except for the fact that it was executed by the defendant, and that he stood back of his son as an assurance that the moneys provided by the contract would be paid to plaintiff.
But the question presented on this appeal is as to whether or not the allegations of plaintiff’s complaint were sufficient to constitute a cause of action against the defendant. The contract upon which plaintiff seeks to recover herein was the agreement of the defendant and plaintiff’s husband to pay to her the sum of $300 per month, so long as she should live. This was a joint undertaking of defendant and plaintiff’s husband, for the performance of which they were jointly obligated. Either of the obligors might make the monthly payment to plaintiff, or it might be made by them jointly, and payment by either would, pro tanto, discharge his joint obligor. In case of default during the lifetime of plaintiff’s husband, she could not have proceeded to enforce the agreement against either obligor individually, but would have been required to proceed against them jointly. But, as above stated, the husband having died, plaintiff was at liberty to pursue the survivor. Plaintiff’s complaint, wherein she seeks to hold the defendant personally liable for the failure to pay her her monthly allowances, is silent as to any payment having been made by her husband during his lifetime, the allegation of the complaint being merely that the defendant has failed, neglected and refused to comply with the terms of the agreement, by failing to pay plaintiff the moneys therein provided, and that there is now due and owing from defendant to plaintiff the balance of $29,600, for which, with added interest, plaintiff asks judgment. There is no averment in the complaint that, during his lifetime and when he was jointly liable with the defendant, plaintiff’s husband failed or refused to pay her the moneys provided by the agreement. In this respect we think plaintiff’s complaint is defective, and, in the absence of an allegation that the moneys for which she is claiming were not paid by her husband during his lifetime, we do not think the complaint is sufficient to authorize a recovery against the defendant for install*86ments due prior to the husband’s death. However, we think the complaint did state facts sufficient to constitute a cause of action against the defendant for the monthly installments due plaintiff under the agreement from the date of her husband’s death, which occurred on February 6, 1917, to the time of the commencement of this action, and to that extent the complaint was good and defendant’s demurrer thereto was properly overruled.
The order appealed from should be affirmed, with ten dollars costs and disbursements, with leave to the defendant to withdraw the demurrer and to answer upon payment of said costs and ten dollars costs awarded upon the motion at Special Term.
Clarke, P. J., concurred.
Order reversed, with ten dollars costs and disbursements, and demurrer sustained, with ten dollars costs, with leave to plaintiff to serve amended complaint on payment of said costs.