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Severance v. Severance

260 N.Y. 432 Court N.Y. Decision date 1933-01-10 English

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p. 432
Faith G. Severance, Appellant, v. Harold C. Severance, Respondent.
(Argued December 8, 1932;
decided January 10, 1933.)
Charles H. Tuttle for appellant.
Section 1159 of the Civil Practice Act has no application to the provision of
p. 433
the final judgment approving the agreement between the parties. That provision was not for ah'mony or support within the meaning of the section; and, in any event, it should not have been stricken from the final judgment. Furthermore, the Appellate Division erred in holding that the provisions for periodical payments and for support and maintenance terminated upon the remarriage of the wife. (Collins v. Collins, 80 N. Y. 1 ; Wilson v. Hinman, 182 N. Y. 408 ; Skidmore v. Skidmore, 160 App. Div. 594 ; Barnes v. King, 129 App. Div. 192 ; Matter of Junge, 125 Mise. Rep. 707; Johns v. Johns, 44 App. Div. 533 ; 166 N. Y. 613 ; Carson v. Murray, 3 Paige, 483; Mann v. Hulbert, 38 Hun, 27 .)
Henry A. Uterhart and Edward D. Brown for respondent.
The agreement being for the support of the plaintiff, having been incorporated in the decree by the plaintiff, thereby became subject to the mandatory provision of section 1159 of the Civil Practice Act and was properly stricken from the decree. (Schley v. Andrews, 225 N. Y. 110 ; Mowbray v. Mowbray, 136 App. Div. 513 ; Skidmore v. Skidmore, 160 App. Div. 594 ; Wetmore v. Wetmore, 162 N. Y. 503 ; Altman v. McMillan, 115 App. Div. 234 ; Wilson v. Hinman, 182 N. Y. 408 ; Colone v. Colone, 24 N. J. Eq. 440 ; Pullin v. Pullin, 52 N. J. Eq. 9 .)

The provision of the final judgment of divorce “ directing payments of money for the support of the plaintiff ” (Civ. Pr. Act, § 1159) should be stricken out, the plaintiff having remarried, but without prejudice to the right of the plaintiff to seek relief under the provisions of the contract of December 12,1925. We express no opinion as to her right to support under such contract.

The order should be modified in accordance with this opinion and as so modified affirmed, without costs.

Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, ILubbs and Crouch, JJ., concur.

Ordered accordingly.

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