Rosmarin v. Rosmarin , 238 A.D. 798 ( 1933 )

Order granting summary judgment, in so far as appealed from, and judgment entered thereon unanimously affirmed, with ten dollars costs and disbursements. We are of opinion that the covenants are independent and that the wife’s omission or refusal to abide by the covenant not to begin a matrimonial action does not affect the husband’s obligation to pay the stipulated amount for the support of the child during minority. The obligation of support of the child is not conditioned on the wife’s covenant not to sue, and the agreement for the support of the child “ is looked upon as a substitute for the legal duty ” of the father. (See Thomas v. Thomas, 104 N. J. Eq. 607, 609; Sabbarese v. Sabbarese, 104 id. 600, at p. 601, the latter affirmed on that opinion in 107 id. 184.) Present — Lazansky, P. J., Kapper, Carswell, Seudder and Davis, JJ. ,