The opinion
Froessel, J.
(dissenting). In my opinion, the complaint is legally insufficient. A cause of action to declare null and void a separation agreement must set forth facts impeaching or challenging the agreement for some cause recognized by law (Goldman v. Goldman, 282 N. Y. 296, 300 ). As the statute provides (Civ. Prac. Act, § 241), the complaint “ shall contain a plain and concise statement of the material facts, without unnecessary repetition, on which the party pleading relies, but not the evidence by which they are to be proved.” Mere conclusions are insufficient (Kalmanash v. Smith, 291 N. Y. 142, 156 ). A reading of the amended complaint herein discloses that the only allegations concerning the circumstances surrounding the execution of the separation agreement are contained in paragraph fifth, namely, that plaintiff accepted the sum of $30 a week “ because of her destitute circumstances and by reason of her weak, nervous and run-down condition, although insufficient and inadequate at that time ’ ’, which conclusory allegations are in effect repeated in paragraph fourteenth but also alleged to relate to a period subsequent to the separation agreement. In other words, plaintiff conclusorily alleges that when she made the agreement she was without funds, weak, nervous and run down, and that the amount she received — almost 40% of her husband’s income — was inadequate. No facts showing inadequacy, misrepresentation, fraud, concealment, duress, undue influence, overreaching conduct, or repudiation of the agreement by her husband are pleaded. The mere fact that the financial situation of the husband has substantially improved since the separation agreement is not a ground for setting it aside (Schmelzel v. Schmelzel, 287 N. Y. 21, 24, 26 ).
Accordingly, the order of the Appellate Division should be reversed and the order of Special Term giving plaintiff-an *258 opportunity to plead over should be affirmed. The question certified should be answered in the negative.
Loughran, Ch. J., Dye and Fuld, JJ., concur with Desmond, J.; Froessel, J., dissents in opinion in which Lewis and Conway, JJ., concur.
Order affirmed, etc.