In an action to recover money allegedly due under an agreement of separation entered into between the parties, it appears that the agreement provides that weekly payments of $30 would be made until the plaintiff, wife, remarried, and $15 thereafter; that shortly after making the agreement the wife obtained a Mexican divorce (mail-order decree) and entered into a ceremonial marriage with one Stern in the State of New Jersey; that the defendant then reduced the weekly payments, as provided by the agreement ; and that more than five years later the wife brought this action to recover $4,230, representing the accumulated sum of that part of the weekly payments unpaid. On defendant’s motion, under rule 106 of the Buies of Civil Practice, the complaint was dismissed as failing to state facts sufficient to constitute a cause of action. The plaintiff appeals. She urges that properly construed the agreement sued on contemplates and means that the liability of the husband to pay $30 weekly never terminated because the plaintiff never obtained a valid decree of divorce and that she never contracted a valid remarriage.
The rule is well established that where a writing is annexed to and made part of a pleading the court must construe the writing as found and not according to the legal effect which the pleader places upon it. In other words, the written agreement must prevail over the pleading when there is a variation, and a version different from the writing will not be accepted. (Red Robin Stores v. Rose, 274 App. Div. 462; Sunnyside Self-Service Laundry v. Ald New York, 70 N. Y. S. 2d 339.)
It was stated in the Red Robin Stores case, where the contracts were annexed to the complaint, ‘ ‘ the rights and duties of the parties must be determined by their terms and not by *599plaintiff’s characterization or construction thereof in its pleading ” (p. 465). The rule thus established has been repeatedly cited and followed. (Glahn v. Clark, 251 App. Div. 747; SavoyReeland Print. Corp. v. Sawyer-Hornstein, Inc., 236 App. Div. 818, affd. 261 N. Y. 643.) The writing here involved is not ambiguous. Plaintiff married Stern in 1946. Defendant reduced the payments, as provided by the terms of the agreement, to $15 a week, thus evidencing his construction of the agreement. For more than five years the plaintiff accepted the amounts paid without complaint. Plaintiff, because of her marriage to Stern and her acceptance of the $15 payments, has accepted as satisfactory her position as the defendant’s divorced wife and Stern’s real wife within the meaning of the agreement. Furthermore, the facts alleged in the pleading evidence her construction of the agreement and acquiescence in such construction, which is the same as made by the defendant.
The order should be affirmed, without costs.