I dissent for the reason that the covenant in the separation agreement under review, providing for suspension of alimony payments during such time as the wife shall engage in the retail linen business in New Rochelle, in competition with her husband "either as owner, part owner or stockholder" is not unreasonable and cannot, under the circumstances presented here, be regarded as a device to relieve the husband of his duty to support the wife in contravention of the statute (Domestic Relations Law, § 51).
The agreement provided for a property settlement under which the husband conveyed to the wife his interest in real property owned as tenants by the entirety, the household furnishings, a Ford station wagon, cash and securities in a jointly held safe deposit box, maintenance by the husband of a policy of insurance on his life in the amount of $10,000 for the benefit of the wife, and to pay alimony in the amount of $100 weekly. The terms also included mutual releases and the wife, for her part, covenanted not to make any claim or bring any suits against her husband for maintenance and support so long as the husband kept and performed the covenants and conditions taken by him, in consideration of which she released all interest in the retail linen business conducted by her husband under the style and name of "Haas Linen Shop", with the specific understanding that if she thereafter engaged "in a retail business in the City of New Rochelle, Westchester County, New York, similar to that conducted by the Husband under the name of Haas Linen Shop, either as owner, part owner or stockholder, her right to alimony shall be suspended so long as she is so engaged."
The wife was thoroughly familiar with all phases of the linen business having assisted her husband throughout the married years in the operation of his store. Shortly after the execution of the separation agreement the husband was informed by his landlord that his store lease would not be renewed at its expiration on July 31, 1945, as the premises had been leased to one Greentree who, by the way, is the wife's brother-in-law. At the trial the wife admitted that she knew at and prior to the time of the execution of the separation agreement about Greentree's efforts to get the lease away from her husband but had kept such information from her husband. The husband was *Page 75 evicted in September, 1945, and moved his business to another location in New Rochelle. Forthwith Greentree Linen Shop, Inc., opened a retail linen store in the old location, Greentree and his wife being the officers and stockholders, but took no active part in the business, and the plaintiff wife being in charge as general manager. Faced with this actuality the husband, relying on the covenant, suspended the weekly alimony payments of $100. The wife then brought the within action for separate maintenance and support alleging abandonment, cruel treatment occasioned by open and notorious adultery and failure to support. The husband interposed general denials and as an affirmative defense offered the separation agreement. The trial court found that the allegations of the complaint had not been sustained by the proof and dismissed the complaint making findings to the effect that the separation agreement was valid, that the defendant husband was complying with its terms and that there was no abandonment or failure to support and that the plaintiff wife had also failed to establish her allegation of cruelty based on open and notorious adultery.
These findings, I am satisfied, were amply supported by the evidence and have been affirmed by the Appellate Division, except for its modification of the finding that the wife was engaged in the linen business within the intent and meaning of the separation agreement by the addition of the words "and was so engaged at the time of discontinuance of weekly payments by the husband" (272 App. Div. 822).
There is and, of course, can be no question as to the interest of the State in the economic aspects of the marriage relation. While the husband may not by contract be relieved of his duty to support the wife, the husband and wife may by contract agree upon an amount which the husband shall pay the wife in satisfaction of his obligation. Such agreement, unless unreasonable (Dolan v.Dolan, 296 N.Y. 860) will be enforced (Goldman v. Goldman,282 N.Y. 296; Winter v. Winter, 191 N.Y. 462), and will bar the maintenance of an action for support (Oatman v. Oatman,267 App. Div. 805).
Here the measure of support agreed upon by the parties is not challenged as unreasonable, unfair or inadequate, the sole claim being that the covenant allowing for suspension of alimony payments while the wife engaged in a competing business is *Page 76 null and void and unenforcible because it contravenes the public policy (Domestic Relations Law, § 51). The contrary seems clear and indisputable. The agreement, by its specific terms, does not relieve the husband of his duty to support but rather fixes his obligations which he is bound to meet. The covenant goes to the measure of the support. The wife controls the situation at all times for by her voluntary decision she may determine when she will take the payments or permit their suspension by engaging in competing business. The husband has nothing to say about it. This involves no problem of public policy as to her support for at any time that she desires she may stop competing with her husband and resume receipt of her alimony payments which he is bound to pay. Under such circumstances the covenant is entirely reasonable and should be enforced.
The judgment of the Appellate Division should be affirmed.
LOUGHRAN, Ch. J., LEWIS and DESMOND, JJ., concur with FULD, J.; DYE, J., dissents in opinion in which CONWAY and THACHER, JJ., concur.
Judgments reversed, etc.