In this action on a separation agreement made May 20, 1953 by a divorced wife against her former husband to recover $50 per week support payments for the adopted child of the parties, defendant appeals from a determination of the Appellate Term affirming by a divided court a judgment for the plaintiff for $2,224.75 entered in the Municipal Court after a nonjury trial.
The separation agreement was made after April, 1953 when it was adjudged that neither party was entitled to a judgment of separation (281 App. Div. 987). Paragraph 4 of the separation agreement states that defendant agrees to make $50 per week payments for the support of his daughter “ in accordance with the decree granted * * * in the Supreme Court, Queens County, and entered * * * the 18th day of August, 1952.” In the Queens County action by the husband for an annulment or a separation, the defendant herein was awarded a separation but custody of the child was given to the plaintiff herein and the former was required to pay $50 per week for the support of the infant “ until she becomés of age.” On appeal the judgment was modified to the extent of dismissing the husband’s cause of action for a separation.
The separation agreement further provides:
“11. * * * All the terms and conditions hereof shall continue in full force and effect, notwithstanding the dissolution of the marriage by decree of divorce, or notwithstanding a separation, at any time in the future, and in the event that the wife shall seek a separation or divorce she shall ask no further alimony or counsel fees.
“ In the event of a decree of divorce between the husband and the wife, the provision herein contained for the support and maintenance of the wife and child shall be embodied in such decree and made a part thereof.
“12. This agreement shall not be modified or annulled by the husband or the wife, except by written instrument, .signed, sealed and acknowledged by both, and no party shall have any *55right to ask for a revision of any of the terms of this agreement. The failure of any party to this agreement, by any other party, shall not be deemed a waiver of the right to insist upon a strict performance of such provision or any other provision of this agreement at any time whatsoever.”
On July 20, 1953 a judgment of divorce was entered in the 44th District Court of Dallas County, Texas, divorcing the parties and directing that the husband provide $50 per week support for the child until age 16. The Texas law was subsequently changed to require support of a child to age 18. Plaintiff made application to the Texas court for an increase of the support provision for the child, which was denied. Defendant paid the $50 per week support until the minor child attained the age of 18, but failed to provide support thereafter.
Plaintiff thereupon moved to punish the defendant for contempt for failure to make the weekly payments after the infant attained the age of 18 in accordance with the New York decree. Defendant cross-moved to strike from the Queens County Supreme Court decree the provision for the support of the infant. The motion to punish the defendant for contempt was denied and the cross motion of the defendant to strike the support provision was granted on the ground that the Texas divorce decree superseded the New York separation decree (13 Misc 2d 951). Plaintiff then commenced her action in the Municipal Court based on the separation agreement.
The separation agreement obligated the defendant to pay $50 per week until the child became 21 years of age. The statement in the separation agreement that the amount of support of the child of the parties is “ in accordance with the decree granted * * * in the Supreme Court, Queens County ’’ is descriptive and represents the adoption by the parties of the judgment of that court’s determination as a basis for fixing the extent of defendant’s legal liability for support of the child under the circumstances. (Cf. Marshall v. Marshall, 280 App. Div. 814, 815, affd. 304 N. Y. 956. There the court observed the Florida decree in an “ awkward way ’’ decreed support ‘‘ in accordance with the terms” of a New York judgment. The reference to the New York judgment was held not to vitalize it so as to enable the New York court to punish the defendant for failure to support after the Florida divorce decree.) It was not the intention of the parties herein to terminate defendant’s obligation to support the child when the marriage was dissolved by a divorce decree and the New York separation decree thereby superseded. The agreement expressly states the contrary.
*56Moreover, that the parties fixed their respective rights and obligations in accordance with the laws of New York and did not intend them to he affected by the laws of Texas or any other State is manifest from paragraph 15, which provides: “15. The terms and conditions of this agreement shall be construed and shall be enforceable in accordance with the laws of the State of New York.”
The entry of the Texas divorce decree did not ipso facto serve to abrogate the separation agreement. (Hettich v. Hettich, 304 N. Y. 8, 14; Holahan v. Holahan, 298 N. Y. 798; Schmelzel v. Schmelzel, 287 N. Y. 21, 25-26; Goldman v. Goldman, 282 N. Y. 296; Galusha v. Galusha, 116 N. Y. 635, 645.)
The agreement at bar requires the provision for the support of the infant to be part of any divorce decree; consequently, the adoption by the Texas court of the said provision for support did not serve to merge the agreement with the decree. (Hettich v. Hettich, supra.) Here, as in Hettich, it does not appear the agreement was before the Texas court, nor does it appear that plaintiff there sought any relief in her own behalf.
The record is barren of evidence of abandonment, or of any written modification or termination of the agreement, as by it required, or of “ a mutual act of the parties based upon mutual intention, or some other cause recognized by law, [which] could terminate this valid separation agreement.” (Schmelzel v. Schmelzel, supra, p. 26.)
The agreement not having been incorporated therein, the Texas decree does not affect the power and jurisdiction of the courts of this State to adjudicate its validity and the rights and obligations thereunder. (Flood v. Thiesing, 298 N. Y. 700.) In any event, we are not here concerned with an attempt to invalidate an agreement adjudged valid by the judgment of a sister State. (Cf. Schacht v. Schacht, 295 N. Y. 439, 442; Fry v. Fry, 279 App. Div. 122, affd. 304 N. Y. 889; Hoyt v. Hoyt, 265 App. Div. 223.) Conversely, here the plaintiff seeks to enforce the agreement. Had the agreement been incorporated in the Texas decree, it would have been immunized from collateral attack as to its validity, and enforcible in the courts of this State. (Fry v. Fry, supra; Hoyt v. Hoyt, supra.)
The determination of the Appellate Term, dated May 12,1960, should be affirmed, with costs to plaintiff-respondent.