(dissenting). In our view it was not the intention of this agreement that the wife should receive more money for her personal use if she became less fit than the father to have custody of their children. She was not intended to derive a personal advantage if it were held that their welfare would best be served by transferring them to the father. Neither did the agreement confer upon her rights without duties, since she agreed to pay for their support, education and maintenance out of the $2,500 per month which the husband contracted to pay to her. Appellant does not dispute that it was her duty thus to provide for these children under this separation agreement, which was confirmed by the Nevada divorce decree, nor does she deny that the New York County Special Term had jurisdiction in the habeas corpus proceeding by reason of circumstances occurring subsequent to the entry of the Nevada decree. Due to that final order of a court of competent jurisdiction, it has become impossible for plaintiff to perform her obligation to support, educate and maintain these children in her custody, which she agreed to do. She contends that she is thereby discharged from the obligation to spend any part of the $2,500 per month for the children. The financial burden must be borne by him of supporting and educating these three offspring of the marriage, who are now in their early and middle teens, while at the same time he is compelled to duplicate these expenditures by paying to his estranged wife, without obligation on her part, these very moneys which the agreement contemplated that she was to spend for the same purpose. We think that such a decision violates the intent of the parties as expressed in the contract. There is no occasion for us to assume, without having the final order in the habeas corpus proceeding under review, that the court which rendered it fell into error in finding not only that these children have “ flatly refused to make their home ” with their mother, but also that 1 ‘ on the basis of the evidence, it cannot be said that the preference which the children have expressed and manifested for their father, both in court and in chambers, is capricious or entirely without foundation. ” The decision of the court in the habeas corpus proceeding continues: ££ It goes without saying that on question of custody the paramount consideration is the happi*501ness, interest and welfare of the children involved. No hard and fast rule can be laid down. Each case must rest upon facts peculiar to it. The court will, of course, consider the preference of the children, if of sufficient age and discretion, even though not controlling. The court will also consider the character and competency of the parents, the ability of each parent to care for and protect the children, the advantages which the children will derive if custody is awarded to such parent, the probable environment in which the children will live, the age, sex and health of the children, and other similar circumstances [citing cases]. I believe that the happiness, welfare and best interests of the children will be served if their custody, at least for the present, is awarded to the father. In reaching this conclusion, I have disregarded evidence of incidents not in the presence of the children.” It was further found that there was no evidence that the children’s preference for their father “ has been induced by any undue influence exerted upon them,” nor that their minds ‘1 have been poisoned against the mother, as claimed by the relator.”
When they refused to make their home with their mother, and came to live with him and his second wife under these circumstances, what was the father to do ? It would have been easier and cheaper for him as it turns out to have locked the door, and told them to go back to their mother. He opened his home to them as any considerate parent would have done, and by orderly process of law obtained a judicial decision confirming the change in custody. It is not contended that this decision was in any respect erroneous.
When, regardless of that decision, appellant sued her former husband to recover the full amount of the monthly payments under the separation agreement, without deduction on account of the change in circumstances affecting the children, the Trial Term and the Appellate Division unanimously denied her that relief. The judgment under review does award to her the full $2,500 per month while the children resided with their father until the final order was entered in the habeas corpus proceeding, but thereafter her recovery has been limited to $1,250 per month on the basis that this is all that the husband is liable to pay to her in event that she ceased to have the legal custody of these children.
*502This presents the question whether the contract is divisible in event that she ceases to support, maintain and educate the children out of the $2,500 per month that is payable to her partly for that purpose.
This agreement states that in event of the remarriage of the wife, the monthly payments shall be reduced by one half. Whenever one of the children becomes twenty-five years of age, or sooner dies, the amount of the monthly payments is to be reduced by one sixth. If, after becoming twenty-one years of age, any of the children ceases to make his permanent home with the mother, the same amount is to be deducted from the monthly installments and paid directly to the child. The reason for this clause was evidently that the parents could not attempt to regulate the abode of these children after majority, when they would have the right to live where they chose. The reason on account of which no corresponding clause was inserted reducing the amount payable to the wife before the children became twenty-one, was manifestly that the wife agreed to support and educate them in her custody until that time.
Now that the wife has become unable to perform those responsibilities, the judgment appealed from decides that the structure of this separation agreement is such that the obligation of the husband to support his wife is severable from the obligation to pay to her additional money to support the children. In the opinion by Mr. Justice Bebgah, sitting at the New York County Trial Term, it was said: “ The parties are presumed to have had in mind * * * by necessary implication, that if the arrangement for custody were later changed by a court, the obligation of the husband to pay the wife for the support of the children would be altered accordingly. ’ ’ The Appellate Division affirmed, without opinion. The question presented is different from those involved in Rehill v. Rehill (306 N. Y. 126) and in Harwood v. Harwood (182 Misc. 130); Cogswell v. Cogswell (130 Misc. 541), and Yates v. Yates (183 Misc. 934). The contract here makes it evident that $15,000 per year, at the rate of $1,250 per month, was to be paid to the wife for her own support, and that, although she would not have been liable to account for her expenditure of the balance for the benefit of the children for so long as she educated and supported *503them in accordance with their station in life, it was not meant that she should receive for her own support moneys that were intended to recompense her for providing for the children. The judgment appealed from should be affirmed for the reasons stated by Mr. Justice Beegan.
Even if the foregoing views were erroneous, and if the $2,500 per month contracted to be paid to appellant by respondent were indivisible for all purposes, appellant would be chargeable with a breach of the entire agreement upon her own theory. It is indisputable that by not supporting and educating the children she has omitted to perform a material part of her engagement. It is immaterial in this connection whether she lost custody of the children in the habeas corpus proceeding due to her fault or otherwise. The point is that supporting and educating them was a material factor entering into respondent’s promise to pay to her the $2,500 monthly allowance. Her inability to perform this part of the agreement, due to whatever cause, constituted a breach of the entire contract if her contention that the monthly payments are indivisible be sustained (Duryea v. Bliven, 122 N. Y. 567; Schmidt v. Schmidt, 74 Misc. 423, 425; Haskell v. Haskell, 201 App. Div. 414; 207 App. Div. 723; “Moses” v. “Moses”, 193 Misc. 890, 895; “Almandares” v. “Almandares”, 186 Misc. 667, 673; Durso v. Durso, 205 Misc. 446; Vandemortel v. Vandemortel, 204 Misc. 536, 537; Matter of Noel, 173 Misc. 844, 845-846; Mackey v. Mackey, 205 Misc. 470; Grossman on New York Law of Domestic Relations, §§ 436, 438). In most of the cases just cited, all recovery was denied to a wife due to her breach of a separation agreement by denying visitation rights to the husband, which is, if anything, less material than her omission to support and educate the children out of money paid to her for that purpose. Under such conditions, the wife has usually contended that the broken covenant was independent, and the contract divisible, whereas here it is her position that these monthly installments were indivisible as between her and the children. If that position is sound, then she has broken the entire agreement. A leading out-of-State case upon this point is Cole v. Addison (153 Ore. 688; Note, 105 A. L. R. 901).
*504Even if the inability of these children to live with their mother be due to some personality factor for which she is not at fault, nevertheless she has broken her part of the agreement by not supporting and educating the children. In Lorillard v. Clyde (142 N. Y. 456, 462) this court wrote, per Andrews, Ch. J.: “ The general doctrine that when a party voluntarily undertakes to do a thing, without qualification, performance is not excused because by inevitable accident or other contingency not foreseen, it becomes impossible for him to do the act or thing which he agreed to do, is well settled. This doctrine protects the integrity of contracts, and one of the reasons assigned in its support in the early case of Paradine v. Jane (Aleyn Rep. 26) is that as against such contingencies the party could have provided by his contract. (See Harmony v. Bingham, 12 N. Y. 99; Ford v. Cotesworth, L. R. [4 Q. B.] 134; Jones v. U. S., 96 U. S. 24.) ” (Forty-fifth St. Realty Co. v. 17-19 West 45th St. Corp., 142 Misc. 310, 311; 2 Clark on New York Law of Contracts, § 973, footnote No. 82, and cases cited).
In this instance, if appellant intended to be relieved of her obligation to educate and maintain the children in the contingency which has occurred and to keep for herself money intended for their support, her counsel should have seen that the separation agreement so provided.
It is inaccurate to state that the husband has elected not to declare this contract broken by appellant. The position which he has taken, and which has been sustained at the Trial Term and in the Appellate Division, is that the structure of the contract itself renders these amounts severable, at least to the extent of precluding recovery by the wife under the agreement of more than $15,000 per year exclusively for her own use. The allegation in his answer that by the terms of the agreement the sum of $2,500 per month was intended to be one half for the support and maintenance of the plaintiff, and one half for the support, maintenance and education of the children, and that she discontinued providing for their education, maintenance and support, should be construed as an allegation that she has not fulfilled the latter obligation regarded as an independent covenant on her part to be performed, in consideration of which he covenanted to pay $1,250 per month. This position which *505he took in his answer and at the trial amounted to a contention that the covenant which she had broken was severable from the rest of the agreement, under which she continued to be entitled to receive $1,250 per month for her own support and maintenance. Now that this court is holding that this covenant is not severable, the legal effect is that she has broken a dependent covenant thus entitling him under the cases above cited to claim a breach by her of the entire contract. We should not hold that he has waived every defense due to the circumstance that the part of the agreement which he alleged that she failed to perform turns out to be a dependent instead of an independent covenant. If a party elects to pursue an illusory alternative, that does not prevent him from obtaining the relief to which he is really entitled (Schenck v. State Line Tel. Co., 238 N. Y. 308; Note, 35 A. L. R. 1153; Clark v. Kirby, 243 N. Y. 295; Fitzgerald v. Harbor Lighterage Co., 244 N. Y. 132). If respondent had no such recourse as that which he invoked, in other words, if his payment of $1,250 a month instead of $2,500 was not the correct measure of his rights and liability under the contract, then he should not be precluded from contending that appellant broke the whole contract. What he did should, in the light of our decision, be construed as an act declaring that the entire contract had been broken by her. Bespondent in refusing to pay the full stipulated installments evinced an intention no longer to be bound by the agreement on account of her breach, if the contract was entire, as this court is now holding that it is. In that event, under the authorities, appellant would be entitled to recover nothing, and the judgment awarding to her $1,250 a month should be affirmed for the reason that he has not appealed. Even if it were held that he has not elected to declare the entire agreement broken, the cases cited indicate that he should be given opportunity to do so after the election which he did make has been held to have been illusory.
Even if the answer were not to be construed as alleging at least a partial breach, defendant would not be out of court on the pleadings, inasmuch as plaintiff has failed to allege performance of her obligations, presumably for the reason that according to her theory of the action she rests under no obligation to support and educate these children as a condition of *506receiving $2,500 each month. If either party should fail on the basis of the pleadings, it should be the plaintiff and not the defendant, since the burden of pleading and proving performance of the conditions on her part was on her (Quinn v. Van Pelt, 56 N. Y. 417; Platt v. Tess Hat Co., 280 App. Div. 345). She has not even alleged performance under the formula allowed by rule 92 of the Buies of Civil Practice.
The circumstance that this separation agreement was confirmed by the Nevada divorce decree, and “ each ” of the parties ordered to comply with the terms and conditions thereof, does not change the meaning of the agreement nor deprive it of its character as a contract in New York State. Indeed, appellant has sued upon it as a contract. The defense is not that the contract should be set aside for fraud or illegality in the courts of this State, after confirmation in another State (Schacht v. Schacht, 295 N. Y. 439; Hoyt v. Hoyt, 265 App. Div. 223). Here the defense is that the contract itself means that appellant cannot recover more than monthly payments of $1,250 for her own support after she has been legally deprived of the custody of the children. Although the Nevada decree prevents impugning the validity of the separation agreement, it did not alter its meaning, nor absolve appellant from her covenant to educate and support the children as a condition of receiving the $2,500 monthly allowance. Indeed, as indicated above, it directs each of the parties to comply with the terms and conditions of the agreement. Van Horn v. Van Horn (196 App. Div. 472) does not lead to a different result. There the subsequent litigation in New York State was concerned mainly with whether the wife had broken the agreement, which was an issue of which the New York courts did not hesitate to take jurisdiction notwithstanding that the agreement had been incorporated in a Nevada divorce decree.
The judgment appealed from should be affirmed, without costs.
Lewis, Ch. J., Dye and Froessel, JJ., concur with Desmond, J.; Van Voorhis, J., dissents in an opinion in which Conway and Fuld, JJ., concur.
Judgment accordingly. [See 307 N .Y. 677.]