Heaney v. Heaney

255 A.D. 879, 7 N.Y.S.2d 817

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 1938
• Status: Published

Opinion

Judgment dismissing complaint on the merits in an action to set aside a separation agreement and a conveyance of real property made by plaintiff in accordance therewith reversed on the facts, with costs, and judgment granted plaintiff for the relief set forth in the complaint, with costs. The parties were owners in entirety of a house for which $10,250 was paid. Exclusive of this interest, defendant was possessed of capital approximately in the sum of $12,793. His income consisted of salary as customs guard of $150 a month and income from investments of $150 a year. Plaintiff’s testimony that she did not know the extent of his means is uncontradicted. The agreement, in the light of this financial worth, whereby the plaintiff receives fifty dollars a month and in consideration thereof conveyed her interest in the real property, all the personalty therein, and two life insurance policies, is manifestly unfair and inequitable. A separation agreement which is not just and fair will be set aside. (Hungerford v. Hungerford, 161 N. Y. 550.) The husband’s legal obligation to support his wife (Dom. Rel. Law, § 51) requires him to make financial provisions for her in an amount commensurate with his means. (Tirrell v. Tirrell, 232 N. Y. 224; Harding v. Harding, 203 App. Div. 721; affd., without opinion, 236 N. Y. 514.) Findings of fact seventh, eighth and ninth and all conclusions of law contained in the decision are disallowed and struck out. Plaintiff’s proposed findings twelfth, fifteenth, sixteenth and seventeenth will be found, as well as other findings to be made in accordance with the foregoing. Plaintiff’s proposed conclusions of law will be found. Lazansky, P. J., Hagarty, Davis, Adel and Taylor, JJ., concur. Settle order on notice.