MADELINE C. GORMAN et al., Appellants,
FRANCIS R. GORMAN, Respondent.
APPEAL from an order of the Supreme Court at Special Term (KINGSLEY, J.), entered November 18, 1953, in Onondaga County, granting a motion for a dismissal of the complaint.
John F. Henry for appellants.
Stewart F. Hancock, Jr., for respondent.
Plaintiff Madeline C. Gorman and defendant were married October 6, 1926. Plaintiff James P. Gorman is their son. The complaint alleges that on March 28, 1932, Mrs. Gorman and defendant entered into a separation agreement whereby they agreed to live separate and apart and the defendant agreed to pay to Mrs. Gorman $55 monthly for the support of Mrs. Gorman and the son James. It then alleges the failure of defendant to make certain payments due under the agreement and asks for judgment for the unpaid installments and interest. A copy of the agreement is attached to the complaint.
The tenth paragraph of the agreement contains this sentence: 'Provided, however, that in the event the said party of the first part (the defendant) does not make the payments provided for under this agreement or abide by all the covenants contained in this agreement, this agreement shall be void and of no effect
and the party of the second part (plaintiff Mrs. Gorman) may pursue any remedy in any Court to obtain any relief to which she might be entitled if this agreement were not in effect.'
Defendant moved to dismiss 'the complaint in its entirety or, in the alternative, for a dismissal of one or the other of the causes of action' pursuant to rule 106 of the Rules of Civil Practice on the ground that it appears on its face that the complaint does not state a cause of action.
The motion to dismiss the complaint as against both plaintiffs was granted by the Special Term with the following memorandum: 'The tenth paragraph of the agreement provides in substance that it 'shall be void and of no effect' in the event either party fails to abide by its terms. Concededly, the defendant has breached the agreement by failing to make payments in accordance with its terms. There is no provision in the agreement giving the aggrieved party an option to enforce its terms, as was the case in O'Brien v. O'Brien, 252 A.D. 427. The agreement involved in the instant case was terminated upon a breach thereof and relegates the parties to such other remedies as they might choose to pursue.'
We do not agree with that construction of the agreement. The correct rule is clearly stated in New York Law of Contracts (Vol. 2, § 885, p. 1340), as follows: 'As a general rule, where a contract provides that it shall become void or of no effect or the like, in case of the default of a party to perform some covenant or stipulation on his part, it becomes voidable only on the claim and at the option of the party for whose benefit the provision was inserted and who is injured by the default. Any other construction would contravene the fundamental maxim of the law that 'no man shall take advantage of his own wrong."
In Born v. Schrenkeisen (110 N.Y. 55, 59), Judge EARL wrote: 'It is a general rule that when a written instrument provides that it shall become void in case of default by one party to perform some covenant therein contained, it becomes void only upon the claim and at the option of the party for whose benefit the covenant was inserted and who is injured by the default.'
That this rule of construction has been generally followed in the courts of this State is evident from a reading of the opinions in the following cases. (Roehner v. Knickerbocker Life Ins. Co.,63 N.Y. 160, 166; Titus v. Glens Falls Ins. Co.,81 N.Y. 410; People ex rel. Rodgers v. Coler,56 A.D. 98, affd. 166 N.Y. 1; Morris v. Green,62 ...