(concurring). Appellant and respondent are husband and wife. They have been estranged for some years, and have been engaged in various litigations in many countries throughout the world. The parties are nationals of Bolivia, where the husband owns extensive tin mines. The marital life of the parties centered largely in Paris, France. They separated there some years ago. Later they entered into a separation agreement. The wife has collected approximately $1,100,000 *636under this agreement charging a breach by the husband. The husband.sued in other countries and obtained judgments for the return of the $1,100,000 as illegally obtained. The courts of this State, however, have upheld the wife’s contentions as to the agreement (Patino v. Patino, 278 App. Div. 756, affd. 303 N. Y. 999). The wife has since obtained judgments on the agreement and for necessaries against the husband, on which more than $300,000 is now due.
In September, 1952, the Paris attorney for the husband asked the Paris attorney for the wife for leave to have the husband come to New York for ten days under an armistice that would give him immunity from arrest or service of process while here. The purpose of this was twofold. The husband believed he could take more effective steps in preventing Bolivian nationalization of his mines, if he could work from New York, and, secondly, he was to negotiate a possible settlement of the matrimonial difficulties of the parties while here.
This armistice was agreed to by the wife. The husband arrived in New York on October 21, 1952. He should have had until and including October 31st, free from service of process. Instead, on the afternoon of October 31st he was arrested on a civil order of arrest, and served with orders for examination in supplementary proceedings and with a summons and complaint, all issued by the wife’s New York attorney.
This violation of the agreement of amnesty has been justified by the Beferee and the Special Term on the theory that the conduct of the husband, after he arrived in New York, amounted to a refusal in bad faith to negotiate with his wife to settle their marital difficulties, and that, therefore, the wife was entitled to disregard the armistice. It is with the factual finding of bad faith on the husband’s part and the conclusion drawn therefrom that I strongly disagree. I find, rather, that the evidence discloses lack of good faith on the wife’s part, or conduct which is the equivalent in law to bad faith.
The controversy centers in the events which occurred at a conference between the parties and their attorneys in a New York hotel on October 27, 1952, and thereafter. In the meeting of the 27th the husband made an offer to waive his rights under his foreign judgments for the $1,100,000 and to deposit approximately $540,000 in trust for the support of the wife and the two children of the parties, the principal of the trust to go eventually to the children. In addition, the husband requested an agreement that certain jewelry valued at $600,000, which he had previously given to the wife, be left by the wife to the children.
*637It has been found by the Eeferee and Special Term that this offer was “ fantastic ”, and that it was so ridiculously meager as to show lack of good faith on the husband’s part. It has been held that the wife had the right because of the husband’s parsimony in this offer to make her own unilateral decision that bad faith was evidenced thereby and to treat the armistice as at an end. I find no showing of bad faith on the part of the husband and disagree with the right of the wife to ignore the armistice based on such finding. In my opinion, we should hold that it was the duty of the wife as well as that of the husband to attempt to carry forward the negotiations for settlement of the matrimonial disputes, and that the record shows that the wife absolutely failed to do this.
Assuming that a court would ultimately find that an offer of over half a million dollars was insufficient for a man of the husband’s wealth, at least it was a substantial sum. It was merely an opening offer of settlement and the wife should have made her own demands known. Instead, when the husband’s offer was made, the wife and her attorney made no comment. Her lawyer said that he could see evidence of great dissatisfaction on the part of the wife, and, therefore, he suggested that it would be better to adjourn the meeting until October 29th. No counterproposal of any nature was ever made thereafter by the wife. The meeting of October 29th was cancelled by the wife’s attorney on a plea of another engagement. This plea was concededly false. The wife’s lawyer then agreed to fix the time for another engagement. Instead, on the 29th he called the husband’s lawyer and said that the negotiations were terminated. Thereupon, the wife’s lawyer prepared the papers for the arrest and the service of process. The husband was left entirely unaware of any intention of hostile action. He called his wife on October 30th to say “Goodbye ”. She conceded that the conversation was cordial.
On October 31st, within two hours of his scheduled departure, and while in the course of a business engagement respecting the nationalization of his properties, the husband was arrested.
In my opinion, tactics of the kind pursued by the wife should be disapproved not merely on the legal ground that the husband was entitled to express notice of cancellation of the armistice and an opportunity to depart. While I have no disagreement with the views of the majority in this respect, I feel that we should go farther and express our condemnation of the wife’s *638methods and procedures as evidencing conduct on her part equivalent to bad faith and entrapment.
I concur in the reversal of the orders appealed from not only for the reasons stated in the majority opinion, but also on the separate grounds indicated herein.
Peck, P. J., Bastow and Bergan, JJ., concur with Breitel, J.; Callahan, J., concurs in opinion, in which Bergan, J., concurs.
Orders, so far as appealed from, unanimously reversed, with $20 costs and disbursements to the appellant, and the motions granted. Settle order on notice. [See post, p. 1029.]