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Auten v. Auten

Court of Appeals of New York

Argued October 22, 1954. ; December 31, 1954, decided

No Number in Original


 [*158]   [**100]  FULD, J. In this action to recover installments allegedly due for support and maintenance under a separation agreement executed in this state in 1933, the wife's complaint has been dismissed, on motion for summary judgment, upon the ground that her institution of an action for separation in England constituted a repudiation and a rescission of the agreement under New [***8]  York law. Determination of the appeal, involving as it does a question of conflict of laws, requires examination of the facts disclosed by the papers before us.

Married in England in 1917, Mr. and Mrs. Auten continued to live there with their two children until 1931. In that year, according to plaintiff, defendant deserted her, came to this country and, in the following year, obtained a Mexican divorce and proceeded to "marry" another woman. Unable to come to terms with the ocean between them, plaintiff made a trip to New York City to see and talk to defendant about adjustment of their differences. The outcome was the separation agreement of June, 1933, upon which the present action is predicated. It obligated the husband to pay to a trustee, for the "account of" the wife, who was to return to England, the sum of 50 a month for the support of herself and the children. In addition, the agreement provided that the parties were to continue to live separate and apart, that neither should sue "in any action relating to their separation" and that the wife should not "cause any complaint to be lodged against * * * [the husband], in any jurisdiction, by reason of the said alleged [***9]  divorce or remarriage".

Immediately after the agreement was signed, plaintiff returned to England, where she has since lived with her children, and it is alleged by her - but disputed by defendant - that the latter is also domiciled in that country. Be that as it may, defendant failed to live up to his agreement, making but a few payments under it, with the result that plaintiff was left more or less destitute in England with the children. About a year after the agreement had been executed, in August of 1934, plaintiff filed a petition for separation in an English court, charging defendant with adultery. Defendant was served in New York with process in that suit on December 4, 1936, and, in July, 1938, an order was entered requiring defendant to pay alimony pendente lite. This English action - which, we are told  [*159]  never proceeded to trial - was instituted upon advice of English counsel that it "was the only method" by which she "could collect money" from defendant; it was done, plaintiff expressly declares, to "enable" her "to enforce" the separation agreement, and not with any thought or intention of repudiating it.

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308 N.Y. 155 *; 124 N.E.2d 99 **; 1954 N.Y. LEXIS 930 ***; 50 A.L.R.2d 246

MARGARITE AUTEN, Appellant, v. HAROLD AUTEN, Respondent.

Prior History:  [***1]   Auten v. Auten, 281 App. Div. 740, reversed.

APPEAL from a judgment, entered December 1, 1953, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which (1) affirmed an order of the Supreme Court at Special Term (SCHREIBER, J.), entered in New York County, granting a motion by defendant for summary judgment dismissing the complaint and (2) granted leave to serve an amended complaint. (See 306 N.Y. 752.)

Disposition: LEWIS, Ch. J., CONWAY, DESMOND, DYE, FROESSEL and VAN VOORHIS, JJ., concur.

Judgments reversed, etc.


law of the place, repudiation, separate agreement, conflict of laws, parties, contacts, courts

Civil Procedure, Federal & State Interrelationships, Choice of Law, Forum & Place, Contracts Law, Contract Interpretation, General Overview, Defenses, Affirmative Defenses, Accord & Satisfaction, Breach, Breach of Contract Actions, Significant Relationships, Criminal Law & Procedure, Jurisdiction & Venue, Conflict of Law