The parties to this action were married in 1909 and lived together for ten years. Three children were born to them. In May, 1920, differences arose; a separation agreement was entered into and within a few days thereafter the plaintiff moved to Reno where she began an action for divorce. The defendant paid her expenses to Reno as well as the expenses of the action. After she obtained the divorce he offered to pay certain amounts for her support and maintenance if she would leave Reno and live in New York. She came to New York as agreed but he failed to make the payments. She then brought this action to recover damages for breach of contract and has judgment on a verdict for $10,000.
While the plaintiff was in Reno she and the defendant corresponded regularly and they were most friendly. He telegraphed congratulations to her and her second husband upon the plaintiff’s remarriage; and the defendant wrote that he regretted the plaintiff disapproved of his choice for his second marriage.
*385The defendant financed plaintiff and some of the children on journeys between New York and Reno and she sojourned at his house in Queens.
The plaintiff remarried at Reno in January of 1922. In September of that year, while living there with her three children and her husband, a Mr. Bell, she received a letter the material part of which is as follows:
“ Remember as long as I produce I am ready to pay you 2000 a year for the four of you and buy a modest little home here in New York if you wish it. If Mr. B. would come on with you so much the better.
“ It would be a great satisfaction to have you all near me for there would be many ways in which I could share what little I have.”
The plaintiff says she wrote to the defendant in reply to his offer that it was impossible for her to come east at that time but that she could, possibly, do so in the spring. Thereafter letters passed between them. Respondent contends that appellant’s letters and actions indicate that the offer was kept open and that she accepted and performed according to its ternas with the result that a contract was made. Defendant failed to pay the plaintiff the $2,000 per year.
It must be noted that the defendant indicated no necessity of accepting the offer within any given time, but on the contrary, indicated that it remained good until plaintiff could come east.
In the desire to have the plaintiff and her children near him, the defendant not only offered to pay her $2,000 a year for her support and that of the children and to supply a modest home for them in New York, but went to the extent of suggesting that if her husband wished to come along that also would be agreeable to the defendant.
In the spring of 1923 the defendant repeated the offer, evidently having in mind the plaintiff’s statement to him that she might be able to come in the spring, and on March 2, 1923, he wrote that at any time she desired to come east he would “ turn Heaven and Earth to get the wherewithal together.” The defendant did not feel at that time that his offer of September 27, 1922, had been rejected. On April twelfth the plaintiff wrote the defendant that she could not come east until school closed. The defendant insisted she should return to the east without further delay. This she did, as agreed between the parties, carrying out her part of the agreement.
Throughout the correspondence the defendant is found making inducements to his former wife to leave Reno and come to New York with the three children, so that they would be near him.
When the plaintiff wrote that she could not then come east, but in the spring she might be able to do so, the husband sent *386her a letter in which he said: “ Perhaps this Spring If I can sell either or both of the houses I’ll be easier financially. However, if you decide ever to come back east I shall turn Heaven and Earth to get the wherewithal together. * * *
“ Of course it would bring me much joy to have my babies near me and of course they need you too. * * *■
“ I was going to try to dispose of some excess furniture but if you think you’re like to take up quarters East again perhaps I’d better not.”
The plaintiff says she would not have come to New York had it not been for such inducements. She was not in a position to come when first requested to do so because her second husband’s business prevented it. It is apparent from a later letter that defendant intended to continue to support her when she came east. This was emphasized by the letter of April twentieth, in which he said: “ I suppose your mother will be returning east with you and will have to be assisted also.”
He also wrote: “ When you come east you must not consider doing anything but running your home and bringing up the children. At least until things begin to look normal to you. Even then if a modest home and a tranquil existence suit you it might be well to consider that you’ve had your ‘ fling ’ as you used to call it.”
The correspondence establishes that the defendant induced his former wife to come east upon the promise of support. In fact, he admitted upon the trial that it was his understanding of the arrangement that he was to pay $200 a month, when his former wife came east for the support of herself and the children.
In addition, he paid all the expenses, including car fares from Reno to New York. He had been paying $200 a month while the plaintiff lived in Reno, and the only additional obligation he was agreeing to was that of a modest home. It should be borne in mind that the obligation to support the children was upon the husband and that all he was additionally offering voluntarily was to support the former wife; and this he evidently considered necessary, if she should comply with his request to come to New York to look after the children. There is no doubt that he induced this plaintiff to bring these children east through this promise to support them and that he then repudiated his obligation to furnish such support.
By the terms of the separation agreement he agreed to pay $150 monthly during the lifetime of his wife as well as certain other additional amounts, unless she remarried. During her stay in Reno he paid about $200 a month for the support of the plaintiff and the children.
*387The evidence shows that when the plaintiff arrived in New York, defendant took the three children from her, under the pretext that he was taking them temporarily. The plaintiff brought a proceeding to obtain their custody in which proceeding she was defeated. However, one of the children is now living with her.
The evidence sufficiently proved that the defendant entered into a contract with the plaintiff by which he induced her to come to New York by agreeing to support her and the three children who were to five with her and that he afterwards made compliance with the contract impossible.
The breach was on the part of the husband, he having prevented performance.
The judgment should be affirmed.
Dowling, P. J., concurs.
Judgment and order reversed, with costs, and complaint dismissed, with costs.