Appellate Division of the Supreme Court of New York, 1955

Denning v. Denning

Denning v. Denning
Appellate Division of the Supreme Court of New York · Decided December 23, 1955
1 A.D.2d 741; 146 N.Y.S.2d 741; 1955 N.Y. App. Div. LEXIS 3773
Denning v. Denning

Opinion of the Court

Appeal from a judgment entered upon a decision of the Supreme Court at Trial Term in Broome County, directing defendant-appellant to convey certain parcels of land and to execute a note and a real property mortgage pursuant to the terms of a separation agreement. Defendant-appellant does not deny that she has failed to carry out the terms of the separation agreement. She contended *742that she should not be required to perform according to its terms because plaintiff-respondent has breached the agreement by failing to make certain payments for the support of a child of the marriage and because plaintiff-respondent revoked the agreement by cohabiting with her subsequent to its execution. The record discloses that plaintiff-respondent substantially performed the conditions imposed upon him by the agreement and there is evidence sufficient to support a finding that marital relations were not resumed. Judgment unanimously affirmed, with costs. Present — Poster, P. J., Bergan, Coon, Halpern and Zeller, JJ. [See post, 929.]

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