Appeal from Special Term, New York County.
Action by Edith D. Clark against Louis V. Clark. From an order refusing to punish defendant for nonpayment of alimony, plaintiff appeals. Affirmed.
Michael Schaap, for appellant.
Norman Johnson, for respondent.
Argued before INGRAHAM, McLAUGHLIN, HOUGHTON, CLARKE, and SCOTT, JJ.
[115 N.Y.S. 501] McLAUGHLIN, J.
On the 16th of May, 1902, the plaintiff obtained a judgment of divorce which also awarded her as alimony the sum of $120 a month, which the defendant was directed to pay on or before the 1st day of each calendar month. After the decree had been entered and on the same day, an agreement was executed by the defendant, which recites:
" That, a final judgment having been entered herein awarding plaintiff alimony at the rate of $120 a month, she, in consideration of the sum of $5,000, and other valuable consideration to her paid concurrently with the execution and delivery of this instrument, releases the defendant of and from all claim for such or any alimony except as provided in section 2 hereof."
Section 2 of the agreement provides that defendant will pay alimony at the rate of $40 per month from June, 1902, to May, 1903, and an increase of $10 per month each subsequent year until the monthly payments reach the amount provided for in the decree. The fourth paragraph of the agreement provides that:
" This agreement is intended as a contract, which, as such, may be enforced by either party against the other by any appropriate remedy in any proper jurisdiction. This clause is not exclusive of plaintiff's right to enforce the payment of her alimony in any manner which the law shall allow."
The agreement does not appear to have been executed by the plaintiff. Nevertheless she seems to have acted upon it. Defendant paid to her the $5,000 and the alimony provided for in the agreement down to and including August, 1907, and thereafter neglected and refused to pay any further sum. In April, 1908, the sum of $720 alimony being due under the agreement, the same was demanded of the defendant, which he refused to pay, and thereupon a motion was made to punish him for contempt. The motion was denied, and the plaintiff appeals from the order.
The defendant could not be punished for contempt for violating the terms of the agreement. The agreement was a contract and nothing else. It recites that it was intended as a contract which might be enforced by either party by an appropriate remedy. The appropriate remedy to enforce a contract is not by motion to punish for contempt for the violation of any of its terms, but by action, and that the parties had this in mind is evident from the fact that there is a provision in it to the effect that it should not prevent the plaintiff's right to enforce the payment of her alimony in any manner which the law allowed, which was but another way of saying she might proceed under the judgment if the defendant failed to pay the alimony as therein provided. Therefore, when the motion was made to punish him for contempt, the inquiry was not whether he had paid as provided in the agreement, but, instead, whether he had complied with the direction of the court and paid the alimony as directed in the judgment. He had more than paid the alimony as therein directed if the $5,000 paid when the agreement was signed is to be considered as a payment to apply upon alimony. That this was its purpose seems to me clear. It was, in effect, the payment of alimony in advance, so understood and intended by both parties. Plaintiff gave up nothing by the agreement. [115 N.Y.S. 502] Had the payments been made as therein provided, she would have received as much or more alimony than she would under the judgment. But it is urged that she agreed that alimony should cease if she remarried. She made no such agreement. As we have already seen, the agreement was not signed by her. It is doubtless binding upon her so far as she has acted upon it, but it does not take the place of the judgment or prevent her from enforcing the same. The judgment has not been modified, and, until modified, she is entitled to alimony as therein provided.
I am of the opinion that the court properly denied the motion to punish defendant for contempt, and for that reason the order appealed from should be affirmed, but without costs.
CLARKE and HOUGHTON, ...