Goodison v. Goodison , 66 A.D.2d 923 ( 1978 )

Appeal from a judgment of the Supreme Court in favor of plaintiff for amounts due pursuant to the separation agreement, entered September 20, 1977 in Broome County, upon a decision of the court at a Trial Term, without a jury. On June 1, 1976, defendant and plaintiff executed a separation agreement which provided for the payment of $30 per week by appellant for each of their two children, the sum of $250 for counsel fees, and the payipent by appellant for 50% of the electric bill for six months at the parties’ apartment. After a trial, without a jury, for amounts due under the agreement, the trial court rendered a decision awarding plaintiff each of the items requested in the complaint. Defendant contends that he did not execute the separation agreement voluntarily, but rather under duress, coercion and by fraudulent misrepresentation of plaintiff and her attorney, and that he was not represented by an attorney, and his legal rights were compromised and, therefore, the agreement should be rescinded. The separation agreement was prepared by plaintiffs attorney and was signed in his office. Defendant contends that he did not understand the terms of the agreement, and that he was misled by plaintiffs attorney that after the execution of the agreement the amount of support required could be modified by the Family Court. Defendant executed the separation agreement freely and absent any duress or undue influence. The agreement’s pertinent provisions are clear and unambiguous. By his signature, he affirmed that he read the agreement, and the testimony is unquestioned that he read or was provided the opportunity to read the agreement prior to signing. He was well aware that the agreement had been prepared by his wife’s attorney and that that attorney represented only his wife. The agreement which he signed also advised him that the written agreement was the entire agreement and there were no representations or promises other than contained in the agreement. Defendant’s testimony that he was misinformed was denied by plaintiffs attorney. Where two parties, with knowledge of the facts or without any inequitable conduct, have executed an agreement, that agreement should be upheld despite one of the parties being mistaken as to its legal consequence. The language adopted by the parties must be construed according to its legal effect and not in accordance with an alleged misapprehension or ignorance of a lawyer. The power of the court to order rescission is an exceptional one and should not be exercised unless justified by some such element as fraud, accident, or mistake, and then only when such element is clearly evident (Interstate Chem. Corp. v Duke, 92 Mise 519, affd 176 App Div 684, affd 226 NY 610; cf. Ocheo Realty Corp. v Sev Realty Corp., 205 App Div 324). Judgment affirmed, without costs. Kane, Staley, Jr., and Herlihy, JJ., concur.