APPEAL by the plaintiff, Esther Jennie Johnson, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 29th day of November, 1911, denying the plaintiff's motion for counsel fees.
E. Crosby Kindleberger, for the appellant.
Henry Smith [James S. Darcy with him on the brief], for the respondent Johnson.
In 1902 the plaintiff executed a written separation agreement with her husband, the defendant Wilbur C. Johnson, and the defendant John F. Carson as trustee, whereby it was provided,
among other things, that the said Wilbur C. Johnson would pay the sum of twenty-five dollars each week for her support and maintenance, and whereby she agreed to accept said sums in full satisfaction for her support, maintenance and all alimony whatsoever. This action is brought to cancel or modify said agreement in so far as it limits her to said sum of twenty-five dollars, and to increase that sum provided for her support and maintenance to at least the sum of $3,000 a year. She asks such relief on the ground that she was induced to agree to the sum specified in the agreement 'under moral duress and compulsion' and by undue influence exercised over her by her husband. The answer of the husband denies the charges of duress and undue influence, and after the joinder of issue the plaintiff's attorney moved at Special Term for an order allowing him counsel fees in the action. The Special Term denied that motion on the ground that its power to award counsel fees to the wife's attorney to be paid by the husband in litigation between them is limited solely to the matrimonial actions enumerated in title 1 of chapter 15 of the Code of Civil Procedure, viz., actions for annulment, divorce or separation, and cited the cases of Ramsden v. Ramsden (91 N.Y. 281) and Phillips v. Peacock (63 Misc. 520) as authority for its decision. The plaintiff appeals from the order denying said motion for counsel fees.
In Ramsdem v. Ramsden (supra) all that was held was that an action could not be maintained by a wife against her husband solely to obtain a judgment providing for her maintenance and support.
The facts in Phillips v. Peacock (supra) are more nearly analogous to the case at bar. There in an action by the trustee designated in a separation agreement to compel specific performance of the agreement by the husband, the Special Term of this court held that it did not have jurisdiction to grant an order compelling the husband to pay alimony and counsel fees during the pendency of the action. The court, however, based its decision on the fact that the wife was not in court asserting her rights as a wife and asking for means wherewith to maintain them. The plaintiff in that action was the trustee, and it was held that, having made the agreement at arms length
with the husband, he could not, while insisting upon the letter of the contract, in his capacity as trustee, obtain the benefits provided for a wife as such. The learned court said (p. 523): 'If the wife were bringing an action herself for the purpose of setting aside the agreement, or ignoring it, and electing to stand upon her rights as a wife, a different case would be presented.' Precisely such a different case is presented by the case at bar, where the wife, standing on her rights as such, seeks as plaintiff in a suit in equity to set aside or modify her separation agreement. Research does not disclose any authoritative decision in this State regarding her right to the assistance of a counsel fee from the husband to enable her to prosecute such a suit. The suit is in equity for the cancellation or reformation of a contract, and there can be no serious question regarding the jurisdiction of the Supreme Court to entertain such a suit and to decree the relief prayed for in the complaint upon proof that the plaintiff's consent to the contract was induced by the defendant's fraud or duress. The case of Hungerford v. Hungerford (161 N.Y. 550) is an instance where a separation agreement was set aside as being inadequate for the wife's support, and executed by her inadvisedly as a result of her husband's prior ill treatment. So, too, the enforcibility of separation agreements in equity, although questioned at one time, is now thoroughly established. (See Walker v. Walker, 9 Wall. 743; Pettit v. Pettit, 107 N.Y. 677; Galusha v. Galusha, 116 id. 635; Carson v. Murray, 3 Paige, 483, and Mann v. Hulbert, 38 Hun, 27.) It would seem that since the Domestic Relations Law (Laws of 1896, chap. 272, § 21) such agreements may be enforced at law as well as in equity. (Winter v. Winter, 191 N.Y. 462.)
The Court of Chancery in this State, prior to any statute on the subject, had jurisdiction to decree the nullity of the marriage status itself, when the consent to the contract had been induced by fraud or duress. (Ferlat v. Gojon, 1 Hopk. Ch. 478.) In Wightman v. Wightman (4 Johns. Ch. 343) Chancellor KENT, in the absence of statutory authority, annulled a marriage with a lunatic. Those cases depended upon the general jurisdiction of Chancery to annul fraudulent contracts or to relieve from contracts which were not the result of a meeting
of the minds. It was said that like jurisdiction was possessed by the English Court of Chancery, although seldom if ever exercised by that court owing to the established jurisdiction of the ecclesiastical courts with power to grant summary remedies in all matrimonial causes. Such chancery jurisdiction, being based on the general jurisdiction of that court in cases of lunacy and fraud rather than on the jurisdiction of the ecclesiastical courts, did not extend to cases beyond such general chancery jurisdiction; and the same court that decided the ...