Trifaro v. Trifaro

New York Supreme Court

Trifaro v. Trifaro

12 Misc. 2d 233, 173 N.Y.S.2d 333, 1958 N.Y. Misc. LEXIS 3612

CourtNew York Supreme Court

DecidedMarch 28, 1958

StatusPublished

Cited by1 cases

This text of 12 Misc. 2d 233 (Trifaro v. Trifaro) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Trifaro v. Trifaro, 12 Misc. 2d 233, 173 N.Y.S.2d 333, 1958 N.Y. Misc. LEXIS 3612 (N.Y. Super. Ct. 1958).

Pincite

Opinion

Mabio Pitioiti, J.

Plaintiff wife moves pursuant to rules 109 and 110 of the Buies of Civil Practice, to dismiss two counterclaims interposed by the defendant husband in this separation action.

The defendant’s first counterclaim seeks specific performance of an unexecuted separation agreement wherein the plaintiff and defendant allegedly agreed to convey real property held by them as tenants by the entirety, and to share the proceeds thereof. This unsigned agreement is unenforcible under section 259 of the Beal Property Law which provides ‘ ‘ A contract for the leasing for a longer period than one year, or for the sale, of any real property, or an interest therein, is void, unless the contract, or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged ’ ’.

Defendant alleges that the agreement is enforcible notwithstanding the Statute of Frauds where a confidential relationship will be violated or fraud or injury will result without redress. The unsigned agreement itself makes it evident that no such confidential relationship will be violated, or such injury result. The first counterclaim is dismissed.

Defendant’s second counterclaim alleges fraud in that the defendant was induced to pay to the plaintiff the sum of $1,000 out of the proceeds of their joint savings account, by the plaintiff’s promise to execute the separation agreement.

Section 51 of the Domestic Belations Law provides “ a husband and wife cannot contract to relieve the husband from his liability to support his wife.” The agreement in question would merely work a division of property real and personal to which the plaintiff had title or an interest prior to the time the alleged agreement was entered into. This agreement would be unenforcible since it attempted to relieve the husband from his liability to support rather than make provision for maintenance and support. Therefore, the alleged misrepresentations by the wife that she would execute the agreement would not be material in that the agreement was not enforcible.

Both counterclaims are dismissed.

Settle order on notice.

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Mabio Pitioiti, J.

Plaintiff wife moves pursuant to rules 109 and 110 of the Buies of Civil Practice, to dismiss two counterclaims interposed by the defendant husband in this separation action.

The defendant’s first counterclaim seeks specific performance of an unexecuted separation agreement wherein the plaintiff and defendant allegedly agreed to convey real property held by them as tenants by the entirety, and to share the proceeds thereof. This unsigned agreement is unenforcible under section 259 of the Beal Property Law which provides ‘ ‘ A contract for the leasing for a longer period than one year, or for the sale, of any real property, or an interest therein, is void, unless the contract, or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged ’ ’.

Defendant alleges that the agreement is enforcible notwithstanding the Statute of Frauds where a confidential relationship will be violated or fraud or injury will result without redress. The unsigned agreement itself makes it evident that no such confidential relationship will be violated, or such injury result. The first counterclaim is dismissed.

Defendant’s second counterclaim alleges fraud in that the defendant was induced to pay to the plaintiff the sum of $1,000 out of the proceeds of their joint savings account, by the plaintiff’s promise to execute the separation agreement.

Section 51 of the Domestic Belations Law provides “ a husband and wife cannot contract to relieve the husband from his liability to support his wife.” The agreement in question would merely work a division of property real and personal to which the plaintiff had title or an interest prior to the time the alleged agreement was entered into. This agreement would be unenforcible since it attempted to relieve the husband from his liability to support rather than make provision for maintenance and support. Therefore, the alleged misrepresentations by the wife that she would execute the agreement would not be material in that the agreement was not enforcible.

Both counterclaims are dismissed.

Settle order on notice.

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Bluebook (online)

12 Misc. 2d 233, 173 N.Y.S.2d 333, 1958 N.Y. Misc. LEXIS 3612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trifaro-v-trifaro-nysupct-1958.

Opinion

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