Davis v. Davis

8 A.D.2d 566, 183 N.Y.S.2d 532, 1959 N.Y. App. Div. LEXIS 9652

Opinion

Appeal from an order and judgment of the Supreme Court, Albany County Special Term which struck out defendant’s answer, dismissed the counterclaim for a divorce, and granted summary judgment in favor of the plaintiff for a sum of money alleged to be due under a separation agreement. The parties to the action were married in 1924. They separated in April, 1953, and on May 29 of the same year they entered into a separation agreement whereby the appellant agreed to pay the respondent the sum of $25 per week during their joint lives, or until the respondent should remarry. Concededly appellant has failed to make some of the payments due under the agreement, and respondent, now a resident of the State of California, sued in this action for money due under the agreement. In his answer appellant set up an affirmative defense that respondent breached the agreement by living in adulterous intercourse with another man after the agreement was made, and also a counterclaim for divorce. This is not a matrimonial action, but an action upon a contract. In such an action an allegation of adultery is not a defense, nor is it available as a counterclaim for divorce (Galusha v. Galusha, 116 N. Y. 635; Mohrman v. Kob, 291 N. Y. 181). The amount alleged to be due under the agreement is not disputed, hence summary judgment was proper. Order and judgment unanimously affirmed, with costs. Present — Foster, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.