The opinion
McLaughlin, J.
(dissenting). Unhappy differences having arisen between defendant and plaintiff, husband
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and wife, they entered into an agreement by which the husband agreed to pay the wife for her support and maintenance, and for releases of her dower interest in certain real estate owned by him, $8,400, which sum has been actually paid to her and of which she now has, or did have at the time this action was commenced, $6,000. She brought this action to set aside the agreement on the grounds: (1) That ai the time of its execution the parties were living together as husband and wife; and (2) that the amount paid to her was inequitable. She had a judgment at Special Term, which, on appeal to the Appellate Division, was reversed and the complaint dismissed upon the merits. The Appellate Division unanimously found as a fact that the agreement was made and entered into after the parties had actually separated. It also found as a fact that at the time of the execution of the agreement and releases, the plaintiff was acting under the advice of counsel; that she executed them without coercion and was then in possession of facts sufficient to enable her to determine what sum she would accept as adequate provision for her future support. It also found there was a good and adequate consideration for the execution of the releases of dower and that the same were executed by her as a part of and pursuant to the agreement of separation. Notwithstanding these findings, this court is about to reverse the judgment and affirm the Special Term, upon the ground that the amount awarded to her was inadequate as matter of law.
In this I am unable to concur.
First.
Prior to the execution of the agreement there was laid before her the financial condition of the husband and she had the advice of counsel, who, before he would permit her to sign the agreement, insisted upon calling in a second counsel. With all this information before her she and her counsel decided that the sum of $8,400 was a sufficient amount, which sum was paid to her by the defendant, and of which she still has and retains $6,000. It is not suggested
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that any fraud, deception or coercion was practiced upon her, or that she was deceived in any way as to defendant’s financial condition, or as to the terms of the agreement or releases. She was the best judge of what she needed for support.
(Winter
v.
Winter,
191 N. Y. 462 .) Under such circumstances, and in view of the findings of the Appellate Division, which are conclusive upon this court,
(Matter of Housman,
224 N. Y. 525 ) it seems to me we are not justified in reversing the Appellate Division and reinstating the judgment of the trial court.
Second.
I had supposed that an agreement, not illegal in its inception and lawful upon its face, could not be rescinded by one party without returning to the other the benefits received; in other words, that he could not keep the benefits of a contract and at the same time repudiate it. This rule applies to a separation agreement, except in so far as the wife has expended the consideration received for her support and maintenance. The plaintiff in this action has not complied with this rule. She still holds, or did when the action was commenced and tried, $6,000, which the defendant paid to her as a consideration for the agreement and releases referred to.
(Tallinger
v.
Mandeville,
113 N. Y. 427 ;
Hungerford
v.
Hungerford,
161 N. Y. 550 .) Before she could be permitted to rescind the agreement and releases she was obliged to restore to the defendant, or offer to do so, so much of the consideration as she had not already expended for her own support and maintenance. She did neither.
I, therefore, dissent and vote to affirm the judgment.
Cardozo, Pound, Crane and Andrews, JJ., concur with Hogan, J.; McLaughlin, J., reads dissenting opinion; His cock, Ch. J., not sitting.
Judgment reversed, etc.