Morgenstern v. Morgenstern

Judgment of the Supreme Court, Nassau County, dated July 27, 1966, modified, on the law and the facts, (a) by deleting from the first decretal paragraph the words “ void in its entirety ah initio, and of no force and effect ” and (b) by substituting therefor the words “ ineffectual and unenforcible insofar as it purports to waive plaintiff’s right to support and counsel fees incurred by her in enforcing that right.” As so modified, judgment affirmed, without costs. The following findings of facts are reversed: “ 8 ” insofar as it ascribes certain facts to the “ urging of the defendant ”; “ 17 ” insofar as it refers to Moyse as a friend of defendant; “20” insofar as it includes the statement “ without a similar release ” by defendant; and “21” insofar as it states that “no consideration passed from defendant to plaintiff” for the separation agreement. In our opinion, the parts of the separation agreement herein adjudged ineffectual and unenforcible are separable from the rest of the agreement; and their ineffectuality does not require a striking down of the entire agreement (Schiff v. Sehiff, 270 App. Div. 845; Matter of Brenner, 44 N. Y. S. 2d 447, affd. 268 App. Div. 1001; Hoops v. Hoops, 266 App. Div. 512; Stahl v. Stahl, 16 A D 2d 467; Matter of Frisch, 49 Misc 2d 898; Matter of Lee, 6 Misc 2d 799; Cohen v. Cohen, 88 N. Y. S. 2d 483). We do not reach the question of the validity of any other provision in this agreement, as that question is not now before us for determination. Beldoek, P. J., TJghetta, Christ, Hill and Benjamin, JJ., concur.