Our inquiry goes to the legal sufficiency of the complaint. The action is one by which the plaintiff demands of the defendant, her former husband, $100,000 damages based upon his alleged fraud in inducing her to enter into an agreement during the pendency of a divorce action which she successfully prosecuted in 1944 in the Chancery Court of New Jersey.
The fraud alleged is that, for the purpose of inducing the plaintiff to enter into a contract by which in consideration of the defendant’s payment to her of sums therein specified she would release the defendant from all rights or claims by her for alimony, support and maintenance and for the support of their infant daughter, the defendant falsely and fraudulently represented his net financial worth to be $50,000 when in truth his net worth was $500,000.
As our decision will be influenced by the relation, if any, which the contract in suit bears to the 1944 divorce action, we examine that agreement which is annexed to and made a part of the complaint. Although in her brief before us upon this appeal the plaintiff refers to the contract of 1944 as “ * * * strictly a property settlement agreement ”, the further significant statement is made that the agreement was “ * * * entered into in contemplation of the pending divorce action which terminated the marriage relationship and the plaintiff’s right to support.” (Emphasis supplied.) That fact is reinforced by the allegation in the complaint that the agreement was entered into “ during the pendency of said [divorce] action ”. In addition, after reciting the fact that the wife had instituted in New Jersey an action for divorce in which she demanded alimony for herself and maintenance for the child of her marriage to *107defendant, the contract itself contains the husband’s agreement to pay “ during the pendency of the divorce action ” a stipulated weekly sum in full satisfaction of his obligation to support the wife and their daughter until the entry of a final decree of divorce; that — depending upon when a final decree of divorce was entered — the husband would pay to the wife certain stipulated sums for her own use, for the use of their daughter and to the attorneys who had rendered legal services to the wife in the divorce action. Finally the contract — which was not referred to in the final decree of divorce — contained the following provision which we regard as an important factor: “ 3. The parties agree that in the event that either party shall hereafter obtain a valid final decree or judgment of divorce from the other in any jurisdiction, this agreement and its provisions shall have the same force and effect as though inserted at length in any such final decree.”
It should also be noted that by the plaintiff’s brief upon this appeal we are told that plaintiff “ * 0 * does not seek to attack the validity of the agreement nor does she seek its rescission or modification in any respect, but in this action she simply seeks to recover the damages sustained by reason of the respondent’s deceit.” In that connection the argument is made in plaintiff’s' behalf that as a matter of law she may retain whatever benefits have accrued or may hereafter accrue to her under the 1944 contract and that •— independent of the divorce action successfully prosecuted in New Jersey in 1944 — she may maintain against the defendant the present action at law in which damages in a substantial amount are demanded based upon her allegation that she was induced by the defendant’s fraud to enter into the 1944 agreement.
It is of course true, as asserted by the plaintiff-appellant, that one of the three traditional remedies ordinarily available to a person who has parted with something of value as the result of a contract induced by fraud, is that “ * * * he may retain what he has received and bring an action at law to recover the damages sustained.” (Vail v. Reynolds, 118 N. Y. 297, 302-303; Goldsmith v. National Container Corp., 287 N. Y. 438, 442-443.) However, where as in the present case, the plaintiff frankly states that the agreement in suit was entered into in contemplation of a divorce action instituted by her in *108New Jersey, which statement, as we have seen, is supported by allegations of the complaint and by provisions of the agreement which serves as the basis of the present action, such agreement was not only related to the divorce action but at the time was an incidental and potent factor by which was attained the end then sought by the plaintiff. And where, as here, the plaintiff asserts that she neither attacks the validity of the agreement of 1944 nor asks for its rescission or modification, but demands of the defendant damages by reason of his alleged deceit, we think the law of this jurisdiction is opposed to her position.
As the case comes to us the complaint has been dismissed. Accordingly, we assume the truth of plaintiff’s allegations therein that she was induced, by the defendant’s false representations of his financial worth, to accept under the 1944 agreement a sum inadequate for her proper maintenance during the pendency of the contemplated New Jersey divorce action and in full satisfaction of any and all of the defendant’s obligations to her which might survive the decree in that action. In those circumstances it is difficult to conceive of a measure of plaintiff’s damages which could be applied under the complaint herein other than a determination by the court of the proper amount for plaintiff’s maintenance and support based upon the defendant’s true financial worth.
We regard the law to be established in this jurisdiction that if a dispute over the amount to be paid by . a husband for the support of his wife reaches the stage of court action, resort must be had to the appropriate statutory action applicable to the type of matrimonial litigation involved (Ramsden v. Ramsden, 91 N. Y. 281, 283-284; Matter of Stern, 285 N. Y. 239, 241; and see Civ. Prac. Act, arts. 67, 68, 69, 70). Upon that subject this court has had occasion to say (per Rippey, J.): “ The wife’s right to alimony is not ‘ a private claim or demand ’ arising out of the marriage of the parties. That right comes from the statute and not from the common law (Romaine v. Chauncey, 129 N. Y. 566, 571). Such a claim in itself furnishes no foundation for a cause of action; it is a mere incident of the judgment in a matrimonial action (Galusha v. Galusha, 138 N. Y. 272; Fox v. Fox, 263 N. Y. 68; Civ. Prac. Act, §§ 1169, 1170). * * * The parties by themselves were without power permanently to fix or to alter their marital status or the scope *109of the obligations arising from the marriage relationship by consent, stipulation or their own conduct (Stevens v. Stevens, 273 N. Y. 157, 159; Goldman v. Goldman, 282 N. Y. 296, 299).” (Querze v. Querze, 290 N. Y. 13, 18.) (Emphasis supplied.)
Mindful that the decree by which the parties to the present action were, divorced in 1944 was granted by the Court of Chancery of New Jersey, we exercise the power given to us by section 344-a of the Civil Practice Act and note judicially the following New Jersey statute which — as in our own jurisdiction by section 1170 of the Civil Practice Act — empowers a court granting a divorce decree to retain jurisdiction to alter and amend the provisions thereof with respect to alimony: “ Pending a suit for divorce or nullity, brought in this State or elsewhere, or after decree of divorce, whether obtained in this State or elsewhere, the court may make such order touching the alimony of the wife, and also touching the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall render fit, reasonable and just * * *; orders so made may be revised and altered by the court from time to time as circumstances may require.” (N. J. Stat. Ann., 2:50-37; and see Williams v. Williams, 12 N. J. Mis. Rep. 641; Glassman v. Essex Co. Juvenile Court, 9 N. J. Mis. Rep. 519.)
We agree with the Appellate Division that the case is ruled by Johnson v. Johnson (206 N. Y. 561). In that action — instituted by a plaintiff wife to increase the alimony previously fixed by a separation agreement between herself and her husband — this court reversed an Appellate Division order which in turn had reversed an order of Special Term denying plaintiff’s motion for counsel fees, and granted said motion. Two questions were certified by the Appellate Division: Did (1) Special Term or (2) the Appellate Division have power in that case to award plaintiff counsel fees? Concluding that each question should be answered in the negative this court gave as reasons for its answers (1) that the action was not a matrimonial action and therefore there was no authority for awarding counsel fees; and (2) plaintiff was not entitled to counsel fees because she had failed to plead facts which entitled her to the relief sought. As to the latter reason the opinion by Judge Hiscook (as he then was) stated (p. 568): “ * * * But assuming without *110deciding that the coinplaint does contain certain allegations showing a right to have the entire agreement set aside for fraud and duress, the plaintiff intentionally and deliberately, as shown not only by the complaint but by her counsel’s argument upon this appeal, confines her request simply to a prayer for modification of the amount of allowance for support. She has the power to take this position, and evidently for some reason prefers to preserve the agreement so far as it provides for separation. The question thus becomes whether where parties do enter into a separation agreement which provides as one of its features for an allowance to the wife, the court can annul this latter provision leaving the rest of the agreement intact, and then substitute its decision for the agreement of the parties as to the amount of allowance. It is very clear that this cannot be done. In the first place, the amount of allowance for support to be paid by the husband is so far an integral part of the agreement for separation that I doubt whether it could be set aside without annulling and canceling the entire agreement. But beyond this the court cannot reform an agreement entered into by parties by making a new agreement or provision for them in the place of the one which they have adopted. (Hughes v. Cuming, 165 N. Y. 91, 96, 97.) ” (See, also, Calderon v. Calderon, 275 App. Div. 251.)
The judgment entered upon the order of the Appellate Division shpuld be affirmed, with costs. The certified questions are not answered.*
At Special Term, defendant’s motion under rule 106 of the Buies of Civil Practice to dismiss the complaint was denied. At the Appellate Division the order entered at Special Term was reversed on the law and defendant’s motion to dismiss the complaint was granted. From the Appellate Division judgment of reversal the plaintiff was entitled to appeal as of right (Civ. Prac. Act, § 588). However, upon plaintiff’s motion the Appellate Division granted leave to appeal to this court and certified two questions. Inasmuch as the judgment entered upon the order of reversal by the Appellate Division is final and the certified questions are unnecessary, we do not answer those questions but treat the appeal as one taken as of right (People ex rel. Paulos V. McDonnell, 302 N. Y. 89).