(dissenting). I think the judgment below should not be sustained. At most, plaintiff should be permitted to recover only payments which became due following plaintiff’s commencement of the action in Kings County to set aside the separation agreement.
In Manufacturers Trust Co. v. Gray (278 N. Y. 380, 386) the court said: “We have said that though an agreement by a wife to exonerate her husband from his obligation to support her may be void ‘ in the sense that so long as it remained executory it could not be enforced against her,’ yet the wife has the right to perform it and having done so cannot undo what has been done by recalling what she has paid or requiring the husband to reimburse her. (Third Nat. Bank v. Guenther, 123 N. Y. 568, 576; Pierce v. Pierce, 9 Hun, 50.) ”
There are similar expressions in Bowman v. Bowman (271 App. Div. 943), Matter of Brenner (268 App. Div. 1001) and Ghering v. Ghering (262 App. Div. 1065).
I do not agree with the contention of the respondent that Haas v. Haas (298 N. Y. 69) overruled the law contained in *87the above cases. In Haas v. Haas (supra) the .action by the wife was not predicated on the separation agreement. She was suing for separation claiming nonsupport. The husband interposed the void separation agreement as a defense. Plaintiff’s recovery there for any alimony, even if allowed for the period during which the husband suspended payments (and there is nothing in the ease to show that such alimony would be given for any time prior to the commencement of the separation action), would be in such sum as would be fixed by the court, and not the amount stipulated in the separation agreement. Since in the instant case the plaintiff is suing on the separation agreement, the doctrine of waiver or estoppel enunciated in Manufacturers Trust Co. v. Gray (278 N. Y. 380, supra), and the other cases cited above, would be applicable.
Moreover, I do not agree with that part of the prevailing opinion which assigns significance to the fact that Justice Hill, in the action in Kings County, signed plaintiff’s rather than defendant’s, proposed judgment. Laying emphasis on the words in the judgment used in the phrase ‘ ‘ during the time that the plaintiff is or has been employed ” as determinative is entirely speculative. Those words are not intended to constitute a holding with respect to a right to recover the payments which had already been suspended, but should be read as an adjective clause describing the separation agreement referred to. Thus the decree reads: “ * * * Decreed that the provision in the separation agreement between the parties dated the 18th day of January, 1946, which suspends the payments of $20.00 per week, * *
The words describe the 11 provision ’ ’ of the agreement which is declared void and should not be taken to define what was declared invalid. All that was declared void was the provision of the agreement before the court, and plaintiff should not be permitted to take advantage of fortuitous language to convert such language into a holding.
Although, as I said hereinabove, I believe plaintiff is entitled to recover for payments made after the commencement of her action in Kings County (because at that moment she, in effect, repudiated her waiver of nonsupport as to future payments), the record is barren of any proof as to such date. There is an obvious misstatement at page 9, folio 25, that the action was commenced “ March 24, 1949 ”.
Consequently, I think the order and judgment should be reversed and the case remanded to the court below for additional affidavits as to the date of commencement of the action *88in Kings County, and that we should express the view that plaintiff would then he entitled to summary judgment at the rate of $20 per week from the date of commencement of the said Kings County action to March 18, 1949.
Hammek, J., concurs with Hofstadteb, J.; Pecoba, J., dissents in opinion.
Judgment and order affirmed, etc.