This case presents a very interesting question. It arises upon a demurrer to the complaint. The complaint shows that the parties, husband and wife, having separated, entered into a separation agreement on December 1, 1916, which provided, among other things, for the payment by the husband to the wife of $500 a month for her support and of $200 a month for the maintenance of the children of the marriage. The agreement, in paragraph 12, provided: “ In the event that there should be any material change in the circumstances of either of the parties hereto either party hereto shall have the right to apply to any court of competent jurisdiction for a modification of the provisions herein regarding the amounts to be paid hereunder by the party of the first part to the party of the second part hereto.” The complaint alleges that the plaintiff performed all the covenants in the agreement on his part, but that since the agreement was executed there has been a material change in the circumstances of the plaintiff, whereby his income and earning ability have been materially and substantially reduced. Plaintiff is a lawyer whose income for the past ten years has been derived almost wholly from real estate conveyancing and real estate transactions and the practice of law in connection with such transactions. Shortly after the execution of the agreement the number and magnitude of real estate transactions in the city of New York, and in plaintiff’s practice, became greatly reduced. For the year 1917, the year following the execution of the agreement, *271plaintiff’s income was reduced by more than one-third, and for the year 1918 down to the time of the commencement of the action in November, plaintiff’s income was only one-half of that for the corresponding period of 1916, and for the first half of 1918 plaintiff’s income was less than $1,000 in excess of the amounts required to be paid to the defendant. Furthermore, there has been a material change in the circumstances of the defendant whereby her personal and private income has been materially increased. Whereas during 1916 the defendant was in receipt of dividends and income amounting to $1,440.72, in 1917 defendant received from the same source $8,489.68. The complaint shows that if the amounts payable by plaintiff to defendant for her support and maintenance and for the support and maintenance of the children were fixed in accordance with the course and practice of this court, having in view the financial condition, resources and income of the parties, such sums would be $150 a month for the support of defendant and $75 for each of the children. The complaint alleges that plaintiff has informed the defendant of the change in the circumstances and has tendered the defendant the sum of $300 for the support and maintenance of herself and the children for the month of September, 1918, but that defendant has refused to accept the same, has also refused subsequent tenders, and instead thereof is bringing numerous suits against the plaintiff in the Municipal Court for the monthly sums alleged to be due under the contract as they mature, and threatens to continue to institute such actions notwithstanding plaintiff’s willingness and readiness to pay the sums which this court should fix, according to the course and practice of this court in matrimonial actions, having in view the financial conditions, resources and income of plaintiff and defendant. Accordingly, judgment is asked fixing the monthly payments at $300, subject, however, to the aforesaid provisions of paragraph 12 of the agreement and for other and further relief.
The question presented is whether the court has jurisdiction of the subject-matter of the action. Jurisdiction of the subject-matter is defined in Hughes v. Cuming (165 N. Y. 91, 95) as “ ‘ power to adjudge concerning the general question involved, and is not dependent upon the state of facts which *272may appear in a particular case, arising, or which is claimed to have arisen, under that general question. * * * It is the power to act upon the general, and, so to speak, the abstract question, and to determine and adjudge whether the particular facts presented call for the exercise of the abstract power.’ ”
I agree entirely with the proposition of law, elaborated in the opinion of the presiding justice, that jurisdiction cannot be conferred by consent. But the relevancy of this rule depends upon a correct construction of the contract with which we are dealing. I find in the contract no attempt of the parties to confer jurisdiction upon the court. It is a straightforward clearly expressed agreement for the payment and acceptance of a specified allowance, so' long as there is no material change in the circumstances of the parties, with a plainly implied agreement for the payment and acceptance, on material change in the circumstances of the parties, of a reasonable allowance in view of the resources and income of the parties. The only unusual provision is the one which, instead of providing that what is a reasonable amount, in such case, shall in the event of disagreement be determined by arbitrators, this agreement provides that it shall be determined by the court, which, as I shall point out, is just what the court would do if it had been left to arbitrators and the arbitration failed. Therefore, as I view the action, it is one brought upon a contract, to compel its specific performance by the defendant, namely, to compel the acceptance of a reasonable allowance under the changed circumstances, as. agreed, the amount of which the plaintiff offers and asks to have fixed in the manner stipulated in the contract. If such is the true construction of the agreement and the nature of the action, it seems clear that the court possesses jurisdiction, even though it is conceivable that the court might decline to exercise it.
I also agree that if this action were of the same nature as in Johnson v. Johnson (206 N. Y. 561) or in Ramsden v. Ramsden (91 id. 281) the court would be without jurisdiction. But there is no similarity between this case and the Johnson case. That was an action brought by the wife against her husband to set aside a separation agreement as unfair and inequitable and inadequate so far as it limited the plaintiff *273to the sum of $25 a week fixed by the agreement, and praying “ that at least the sum of $3,000 a year be allowed to her for life, together with a sum to defray the counsel fees and expenses of this action.” The allowance for counsel fees had been made to enable the plaintiff to maintain the action, and Judge Hiscock said: “ In determining whether it had the right to do this it becomes important at the outset to examine the complaint for the purpose of ascertaining what nature of action this may be, for undoubtedly a wife is not entitled to counsel fees pendente lite in every action which she may desire to prosecute against her husband.” Analyzing the complaint, Judge Hiscock concluded that the action was not a matrimonial action, or in the nature of one, and that, therefore, there was no right to grant a counsel fee. Judge Hiscock further said: “ The most that can be claimed in behalf of the action for the purpose of bringing it within the class named is that the parties having agreed on a separation and an allowance, the plaintiff desires to have the court now fix an allowance for support as it might have done if it had originally secured jurisdiction in an action decreeing separation. The court, however, has no power to entertain jurisdiction of an action for such limited purpose under the powers conferred upon it in matrimonial actions. It is settled that the only jurisdiction which it possesses in such actions is that conferred upon it by statute and some further minor powers necessarily incident to the exercise thereof.” (P. 565.) The quotation just made does not apply to the situation in the instant case, for in the Johnson case the plaintiff, standing on an agreement of separation, in other words, being separated from her husband by agreement and not by the judgment of any court, was asking the court to fix an allowance without regard to any agreement and as the court might have done if it had originally secured jurisdiction in an action for separation. Here, however, the plaintiff is seeking to compel the specific performance of an agreement and to have the same enforced according to its terms.
In Ramsden v. Ramsden (supra) it was merely held that a wife cannot maintain an action against her husband for maintenance and support or for alimony alone; that alimony and *274maintenance can be given only where the suit is for a divorce or for separation; that where, therefore, the complaint merely alleges cruelty, abandonment and adultery, without praying for a decree of separation, the court has no power to allow alimony pendente lite or counsel fee.
It is apparent that if Johnson v. Johnson (supra) was not a matrimonial action, this action is not, and the presiding justice has. reached the conclusion, as stated in his opinion, that this is not a matrimonial action. An action is not a matrimonial one or in the nature of a matrimonial action merely because it deals with the provisions of a separation agreement. This is well illustrated by the case of Greenleaf v. Blakeman (40 App. Div. 371; affd., sub nom. Greenleaf v. Schley, 166 N. Y. 627) where the court granted specific performance of one of the terms of a separation agreement, whereby the husband agreed that the payment of the allowance should be “ secured either by bond of sufficient surety, individual or corporate, or by collateral security of suitable character and in market value not less than seventy thousand dollars.” The court held that it could not be contended that the covenant that payment should be secured by a bond of sufficient surety or collateral security of suitable character was too uncertain and indefinite to justify a decree for specific performance, on the ground that there was no provision as to who should determine the sufficiency of the surety or the character of the security, but that this could be determined by the court. The court said: “ The amount of the bond or the sufficiency of the surety could be ascertained by the proof of extrinsic facts which a court specifically enforcing the agreement would require, and those facts being proved, the sufficiency of the surety could be easily and accurately ascertained.” (P. 379.)
This action then, not being a matrimonial one, or in the nature of a matrimonial action, but the general question being the construction of the contract and whether it is capable of specific performance as therein stipulated, let us turn for a moment to the agreement. A contract comprehends not only what the parties expressly write but also that which is to be implied from what they have reduced to writing. The courts are bound to give the same force and effect to the implied agreement of the parties, where such implications *275are determinable, as to the parts which are expressed, and when once it is determined what the implied provisions are, they are to be read into the contract and the rights of the parties are to be adjudged as though such provisions were contained in the instrument itself. (Grossman v. Schenker, 206 N. Y. 466.)
This agreement, thus construed, provides that on material change of conditions, such as shown to exist, the specified allowance shall no longer be paid by the plaintiff, but that henceforth the plaintiff shall pay and the defendant accept such reasonable allowance as the court shall prescribe, according to its course and practice in matrimonial actions, having in view the station in life and the resources and income of the respective parties. The most serious objection to the court’s jurisdiction to compel specific performance of such an agreement is that the new sum to be paid and accepted is not definitely fixed by the agreement itself, but that, instead, the agreement merely provides the manner in which the new sum shall be fixed and contains the unusual provision that it shall be fixed by the court.
An examination of the cases shows that in principle there is nothing even unusual in such an agreement and, in my opinion, nothing beyond the court’s jurisdiction. In an action not matrimonial in its nature (and we have seen this is not a matrimonial action) an agreement to sell property at a reasonable valuation to be fixed by the court, or to perform services at a reasonable price to be fixed by the court, is undoubtedly enforcible, however it strikes one at first blush. It has been held over and over again that where there is an agreement to renew a lease at a price to be fixed by arbitrators, on the failure of the arbitrators to agree, the court will fix the price. (Kelso v. Kelly, 1 Daly, 419; Weir v. Barker, 104 App. Div. 112; Van Beuren v. Wotherspoon, 12 id. 421.) It was held in Joy v. St. Louis (138 U. S. 1, 8, 9, 43), where two railroads had made a contract whereby one was to be allowed to use a portion of the right of way of the other and they prescribed that the compensation should be “ such fair and equitable compensation * * * as may be agreed upon,” that where they failed to agree- the court would fix the compensation.
*276In all these cases the court is not making a contract for the parties, but is merely enforcing the agreement of the parties. And although in each case there was involved the necessity of the court’s determining an unnamed fair and reasonable price or valuation, the court did not hesitate to do so, because the sum could be ascertained by proof of extrinsic facts and according to well-settled rules and principles, just as this court did not hesitate in the Greenleaf Case (supra) to determine the amount of the bond or the sufficiency of the surety, when what was a proper bond or a sufficient surety could be ascertained by the proof of extrinsic facts, easily and correctly.
There is no difference in principle between an agreement to take a resonable payment to be fixed by arbitrators and one to take a reasonable payment to be fixed by the court. In the former case the parties are really contracting that in a certain event it shall be fixed by the court, for they know that, as the cases above cited show, if the arbitrators fail to fix the price, the court will. Therefore, if parties can agree, and if the courts will enforce the agreement, that a fair price, valuation or compensation shall be fixed by arbitrators, and, if they do not agree, by the court, there is certainly no reason why they cannot agree, and why the court should not enforce the agreement, that the fair price, valuation or compensation shall be fixed by the court. That is, in effect, what parties do when one renders services for another, or sells goods to another, without stipulation as to price, for the law says that they impliedly agree that the one shall pay and the other accept a fair price, to be fixed by the court in the event that they do not agree.
If this agreement had provided that on changed circumstances the plaintiff should pay and the defendant accept an allowance to be fixed by arbitrators, the agreement would clearly be enforcible. And if the arbitrators failed to agree, the court would fix the amount, which is readily done by applying known standards and well-settled rules governing what is fair and reasonable in such cases. A stipulation such as this, to pay and accept an allowance to be fixed by the court, is one to pay and accept a fair and reasonable allowance, which is definitely determinable according to *277known rules and standards. As said in the old English case of Milnes v. Gery (14 Ves. Jr. 407), dealing with an agreement to sell at a fair valuation: “ In that case no particular means of ascertaining the value are pointed out; there is nothing, therefore, precluding the court from adopting any means adapted to that purpose.” So, here, there is nothing to preclude the court from adopting the means applied every day in the courts for determining what is a reasonable sum to be paid by a husband for the support of his wife, taking into consideration the station in life of the parties, their resources and income.
The presiding justice asks what is the nature of .the specific performance sought in this case, answers the question by quoting paragraph 12 of the agreement, and concludes that the specific performance sought is that the court shall act. But this ignores the implied agreement that, on material change in the circumstances of the parties, the defendant will accept a reasonable allowance, having in view the resources and income of the respective parties and the standard ordinarily applied in matrimonial actions, such reasonable allowance to be fixed by the court. Thus the object of the action is to compel the defendant to accept a reasonable allowance, as agreed, and the fixing thereof by the court is incidental thereto, but in accordance with the agreement.
If a separation agreement provided that the husband should pay and the wife accept a reasonable sum, having in view the resources and income of the parties and the standard ordinarily applied in matrimonial actions, it cannot be doubted that in an action on the contract the wife could recover, for the sum could be ascertained by the proof of extrinsic facts and according to well-settled rules, just as the proper bond and sufficient surety was determined in Greenleaf v. Blakeman (supra). The reason why specific performance is necessary in this case is that the plaintiff has no adequate remedy at law, for the defendant in effect claims that the payment tendered is not a reasonable amount, refuses to have the amount fixed as provided in the contract, and is bringing numerous suits in the Municipal Court to recover the monthly installments, which the plaintiff only agreed to pay so long as the circumstances of the parties remained substantially *278unchanged. It may be that the plaintiff would have a possible defense to the actions brojight to recover the installments, based upon construing the agreement as one to" pay the stipulated sums only so long as the circumstances of the parties remained substantially the same. On the other hand, the agreement might be construed as obligating the plaintiff to pay the stipulated sums until a different rate was fixed in the manner provided by the agreement. In the latter case, the plaintiff would be subjected to a multiplicity of suits and be remediless unless equity took hold, construed the contract and made a decree for specific performance. Being without adequate remedy at law, this threat of a multiplicity of suits is an additional ground of equitable jurisdiction, and, if a court of equity once takes hold, it will grant full relief. Furthermore, any objection to the jurisdiction of equity on the ground that there is an adequate remedy at law is waived (as it can be) by the agreement itself, which impliedly consents to an application to the court for this very purpose.
I am not unmindful of the fact that if the plaintiff’s right to relief be sustained, it may involve other and subsequent resort to the court, in the event of further changes in the circumstances of the parties, whether for the better or for the worse. But this is merely an argument based on inconvenience, which, while it might lead the court to decline jurisdiction, does not touch the question of law, which is whether or not the court possesses jurisdiction over the subject-matter of the action.
In my judgment, the complaint states a cause of action, and the order should be affirmed, with ten dollars costs and disbursements, with leave to the defendant to withdraw the demurrer and to answer within twenty days on payment of costs in this court and at the Special Term.
Smith, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion to sustain demurrer granted, with ten dollars costs.