A decree separating the parties having been made and the defendant being in default in the payment of alimony therein provided, the parties entered into an agreement in which the plaintiff agreed to accept the sum of $1,140 in satisfaction of the decree and in lieu of all alimony which might be payable thereunder. On her part the plaintiff also agreed to pay certain bills. The agreement was in writing, under the hands and seals of the parties, and a formal stipulation was entered into, signed by both parties, as well as by their respective attorneys, reciting the amicable adjustment of the controversy between the parties, stipulating a discontinuance of the action, and consenting that the decree of separation be vacated. The sum thus agreed upon by the parties as in lieu of alimony was thereupon paid by defendant.
A motion has now been made by plaintiff to punish defendant for contempt under the decree so agreed to be vacated and set aside, and to compel defendant to furnish security in the sum of $2,500 to insure the payment of future alimony.
The court is asked, on motion, to disregard such agreement of the parties, and to enforce the decree as entered.
The provisions for alimony contained in the decree are but a continuation and a crystallization of defendant’s legal liability to support his wife, the amount necesssary therefor being thereby judicially determined. The parties, being able to contract, had, however, at all times a legal right to determine for themselves the amount to be paid for such support. Such an agreement having been made, it is binding until set aside by a court of competent jurisdiction. (Galusha v. Galusha, 116 N. Y. 635; Winter v. Winter, 191 id. 462; Benesch v. Benesch, 182 App. Div. 221; Cain v. Cain, 188 id. 780; Van Ness v. Ransom, 164 id. 483; affd., sub nom. Parsons v. Macfarlane, 220 N. Y. 605.) In the last-mentioned case the agreement was made one day after a decree of absolute *488divorce was entered. In the agreement the husband agreed to pay a certain sum in lieu of the provisions of the decree. Years later the plaintiff endeavored to recover under the decree and the court held that the agreement had been substituted therefor, even though all sums mentioned in the agreement had not been paid.
Certainly a party has the right to satisfy a judgment or to release or waive rights under a decree. This the plaintiff has done by two written instruments, neither of which has been set aside by any court of competent jurisdiction.
Agreements between husband and wife for the support of the latter have always been enforced. As was said respecting such an agreement in Beebe v. Beebe (174 App. Div. 408), cited with approval by Presiding Justice Clarke in Benesch v. Benesch (supra): “ The plaintiff had her choice of the judgment of the court or agreement. She preferred the latter, and, quite competent to contract, made an agreement that for fairness is not justly attacked.”
Such agreements have never been held to be against public policy. The courts should encourage rather than discourage amicable agreements between the parties after separation.
If the plaintiff wishes to avoid her agreement, she should proceed by action to set the same aside, and if she can show that the contract was procured by fraud, duress or undue influence, or that the same is against public policy, or for any other reason should not be upheld, she will be entitled to succeed. (Galusha v. Galusha, 116 N. Y. 635; Hungerford v. Hungerford, 161 id. 550, and other cases above cited.) She cannot, however, admit making the agreement and in disregard thereof proceed by motion under the decree.
The motion to punish defendant for contempt for failure to obey the decree was properly denied, and the order appealed from should be affirmed, with costs.
Clarke, P. J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order to be settled on notice.