Bayerthal v. Bayerthal

In an action upon a separation agreement, order granting defendant’s motion for judgment on the pleadings, dismissing plaintiff’s complaint, and the judgment entered thereon, reversed on the law, without costs, and the motion denied, without costs. The allegation contained in plaintiff’s complaint, that the agreement which is the subject of the action was made in consideration of " other good and valuable consideration ”, and the recital to like effect in the agreement, which is made a part of the complaint, are sufficient to withstand a motion for judgment on the pleadings. (California Packing Corp. v. Kelly 8. & D. Co., 228 N. Y. 49.) The consideration of a written instrument is always open to inquiry, and a party may show that the design and object of the agreement were different from what the language, if alone considered, would indicate. (Hutchison v. Ross, 262 N. Y. 381; Baird V. Baird, 145 N. Y. 659; Hocking Valley Railway Co. v. Barbour, 192 App. Div. 654.) Plaintiff may, if such was the case, establish on trial that the agreement was not in contravention of the provisions of section 51 of the Domestic Relations Law. (Of. Greenfield v. Greenfield, 161 App. Div. 573; Winter v. Winter, 191 N. Y. 462.) Order denying motion for an examination before trial, insofar as appealed from, reversed on the law, without costs. The Special Term denied the motion on the sole ground that the contract on which the action was brought was void as against public policy. The motion is remitted to the Special Term for consideration and determination on its merits. Lewis, P. J., Carswell, Johnston, Adel and Nolan, JJ., concur.