This is an appeal, by leave of the Appellate Term, from an affirmance by that court, one Justice dissenting, of a judgment entered in the Municipal Court in favor of the plaintiff in the sum of $2,224.75.
*57The complaint in the Municipal Court set forth that the action was “ to recover weekly installments of $50.00 per week for 17 weeks [later amended to 41 weeks] pursuant to a separation agreement entered into between the parties hereto for the support of their daughter who is under the age of 21 years, payment thereof demanded but refused.”
The answer of the defendant pleaded general denial, and the affirmative defenses (a) that the agreement was superseded and made null and void by a divorce decree of the Juvenile District Court of Dallas County, Texas, entered July 20, 1953; (b) that the agreement required payments to be made in accordance with a decree granted August 18 [15], 1952, by Couboy, J., which provision in the decree had been vacated and struck out by said Justice by order granted September 30, 1958, which order is a bar to the action, and a third affirmative defense not material here.
The parties hereto were married February 22, 1945 in the State of New York. There was no issue of the marriage, but about one and one-half years after the marriage the parties adopted a child, Elizabeth, born June 27, 1940, who had been previously adopted by this plaintiff.
Subsequently the parties separated and the husband brought action for separation. After trial, by decree dated August 15, 1952, a separation was granted the husband, but custody of the infant was awarded the wife, and the husband was directed to make payments of $50 per week for the support of the child “ until she becomes of age.”
On appeal the judgment was modified to deny separation to either party but otherwise affirmed (281 App. Div. 987).
After the trial the parties entered into a separation agreement dated May 20, 1953, which, inter alia, provided: “ 4. In addition to the payments aforementioned, the husband also agrees to continue to pay to the wife, the sum of Fifty ($50.00) Dollars per week for the support and maintenance of the infant, Elizabeth, the adopted daughter of the parties hereto in accordance with the decree granted by Mr. Justice Conroy in the Supreme Court, Queens County * * * and such payments shall be made as heretofore. The custody of the child Elizabeth was granted to the wife by the decree aforementioned and she is to continue to have sole custody of the child in accordance with that decree.” (Emphasis supplied.)
The agreement provided further that in the event of a separation or divorce in the future the wife should not ask for further alimony or counsel fees, and that in the event of a divorce the provisions for the support of the wife and child should be *58embodied in the decree and made a part thereof. Further, the agreement “ shall be construed and shall be enforceable in accordance with the laws of New York.”
Some time after the conclusion of the court action plaintiff and her daughter moved to Texas (in fact plaintiff executed the agreement in Texas) where plaintiff instituted action for divorce in which she asked custody of and support for the child. The defendant appeared in that action. On July 8,1953, a judgment of divorce was granted plaintiff, custody was awarded plaintiff and the defendant directed to pay $50 per week for the child’s support until she reached the age of 16 years, later extended by law to 18 years.
Thereafter plaintiff sought in the Texas court to have the child’s support provision amended so as to increase the payments to $100 per week. This was denied.
Defendant made payments for the support of the child until she reached the age of 18 years, when the payments were discontinued. Thereafter, plaintiff returned to New York, and moved in the Supreme Court, Queens County, before Cowboy, J., to punish defendant for contempt for failure to continue to make payments of $50 per week. Defendant cross-moved to vacate that portion of the judgment dated August 15, 1952, which directed payments of $50 per week for the support of the infant ‘ ‘ until she becomes of age. ’ ’ The motion to punish for contempt was denied and the cross motion to vacate granted, the court holding that the New York decree was superseded by the Texas decree.
This action in the Municipal Court ensued.
On appeal, the appellant urges that the agreement was incorporated in the Texas decree, but whether it was or not the Texas decree must receive full faith and credit in this State, and plaintiff is estopped thereby from bringing action on the agreement. He asserts that the direction for payment of $50 per week having been eliminated from the decree, there is no basis for the requirement, since payment was to be made “ in accordance ” with that decree. Defendant contends also that even if the agreement were not merged, plaintiff repudiated the same.
Plaintiff contends that the provision in the agreement for the child’s support is still in effect and recovery was allowed properly.
While the agreement bound plaintiff to embody its provisions in any decree of divorce obtained, the direct evidence of merger is somewhat meager and consists of plaintiff’s testimony of what she told the Judge about the existence of the agreement and its provision for support which, she testified, she then said was *59adequate. The indirect evidence, however, is that the amount awarded coincided with that agreed upon (without an examination into the defendant’s means), and that custody was awarded the plaintiff. Whether or not the agreement was merged is not determinative here. If, as plaintiff contends, it was not embodied in the decree, that is some evidence that she elected to ignore or repudiate that provision which called for its embodiment in any decree of divorce obtained.
Again, plaintiff chose to submit the question of custody and support of the infant to the Texas court independently of the agreement, and the court, having jurisdiction of the parties and the subject matter, acted as it deemed fitting, the infant being a ward of the court. Further evidence of plaintiff’s election to ignore the agreement is found in her later application to the Texas court for an increase in the amount which defendant was ordered to pay for the infant’s support. The later motion in the Supreme Court, Queens County, to punish the defendant for contempt, under the 1952 decree, is additional evidence that plaintiff disregarded the existence of the agreement. Separately, it might be contended that neither act alone definitively indicated an intention to abandon or repudiate the agreement. But, cumulatively, the conclusion seems inescapable that there was both an abandonment and a repudiation of the agreement.
As pointed out, since the Texas court had complete jurisdiction, full faith and credit should be given to the decree in its entirety.
To hold that such principle is binding only insofar as plaintiff elects to apply it to the portions of her own choosing is to negate its purpose and effectiveness.
When the parties entered into the agreement they expressly recognized the existence of the decree, the obligation of support declared therein, as well as the amount provided for. Payments were to continue to be made in accordance with the decree; they were to be made to the wife because custody had been granted her by the decree. There is no ambiguity in the language used. Since the parties expressly provided for payments “ in accordance with the decree ”, it must be held to have been within the contemplation of the parties that such decree might and could be modified or even annulled by the court as justice required. (See Civ. Prac. Act, §§ 1164, 1169, 1170.) The husband recognized and bound himself to act in accordance with the decree. When the wife sought later to punish him for contempt because of his failure to continue the support payments, she affirmed her earlier recognition that the obligation provided for in the agreement was premised upon the provision of the decree *60with its potential advantages, and that the court had the power to enforce, modify or even annul provisions of the decree. (See, generally, Restatement, Contracts, §§ 234-236 and comments.)
When the plaintiff thereafter in Texas instituted suit for divorce, custody and support of the child, all parties appearing, she obtained a valid judgment which was an adjudication of all facts put in issue. (See Restatement, Conflict of Laws, §§ 429, 457.) The judgment violated no law, nor contravened any public policy of this State, and is determinative of the rights of the parties. (See Restatement, Conflict of Laws, § 450.) Plaintiff is thereby estopped from bringing this action which, though designated commercial and an action upon the agreement, is essentially one for the support of the infant. The support provision of the agreement had its genesis in the 1952 decree, and the expressed aim was compliance “ in accordance ” therewith. To permit the plaintiff to avail herself of the jurisdiction and powers of the Texas court, the benefits of the decree entered therein, while ignoring the agreement, and then upon returning to New York years later to sue and recover in contract upon a particular provision of such agreement, without regard to the circumstances of the parties or needs of the child, is not to do equity, nor afford a reasonable construction to the terms of such agreement.
Moreover, the language of the Texas decree would seem to create a new source of the extent and obligation of the husband for support of the infant and, in effect, supersede the agreement. (Cf. Marshall v. Marshall, 280 App. Div. 814, affd. 304 N. Y. 956.)
Nor am I unmindful of the Goldman case (Goldman v. Goldman, 282 N. Y. 296), which merely decided that the power of the court conferred by statute, to vary, modify, or even to annul a provision in its decree for support of the wife, is not limited by the terms of a separation agreement entered prior to the decree.
Fry v. Fry (279 App. Div. 122, affd. 304 N. Y. 889) may be distinguished also. In that case plaintiff wife brought action on a separation agreement entered into prior to obtaining a Nevada decree of divorce in which all parties appeared. The wife’s support was declared (in such decree) to have been adjusted by the agreement, which was approved, adopted and confirmed. On appeal the plaintiff’s motion for summary judgment was granted and the husband was declared estopped from attacking the agreement by virtue of the Nevada decree. In the case before us no reference is made in the decree to the agreement, nor was it incorporated or approved.
*61Nor is any hardship imposed by the conclusion reached, for the courts are not powerless to direct support for the infant upon a proper showing. (See Social Welfare Law, §§ 101,101-a, 102.)
Accordingly, the judgment should be reversed and judgment entered for the defendant.
Botein, P. J., and Breitel, J., concur with McNally, J. ; Stevens, J., dissents and votes to reverse in opinion, in which Valente, J., concurs.
Determination of the Appellate Term affirmed, with costs to the respondent.