Windle v. Heard , 254 A.D. 875 ( 1938 )

Action to recover moneys claimed to be due to plaintiff’s decedent from defendant’s decedent under a decree of divorce and an agreement of separation preceding the judgment. Judgment for the defendant, sustaining a defense that an agreement modifying payments to be made was fully executed up to the date of the death of defendant’s decedent, and a defense that plaintiff’s decedent had waived the right to insist on further payments for the period during which the modifying agreement had been fully performed, unanimously affirmed, with costs. The decree of divorce superseded the prior agreement of separation in so far as the payment of alimony was concerned. 'The written agreement of the wife to accept from the husband a lesser sum than that provided in the divorce decree was binding upon the wife so far as executed by the husband. The correspondence between the parties evidenced an extension of that agreement, which was fully performed by the husband up to the date of his death. The rule respecting such agreements where a decree of divorce has been had differs from that which obtains where there is a mere decree of separation or where the support of children is involved. Present — Lazansky, P. J., Carswell, Davis, Johnston and Taylor, JJ.