Second Department, December, 1920. [Vol. 194. accordingly was settled and entered on June 8, 1920. It also provided that either party at any time might apply to the court to modify the judgment. The plaintiff duly appealed here from that judgment. Thereafter, in August following, the defendant moved at another Richmond Special Term, but held by the same justice, for a modification of the judgment so as to give to the defendant a separation. On August 31, 1920, the learned justice granted that motion and made an order at that Special Term purporting to amend the said decision and judgment accordingly. From that order and the amended judgment, which was entered, plaintiff promptly appealed. The first contention of the appellant here to be considered is that the court at another Special Term was without power to amend the decision or judgment in a matter of substance, i. e., so as to grant to defendant a separation, the original judgment having not granted it. (Meyer v. Haven, 70 App. Div. 529, 534; Smith v. Smith, 121 id. 480; Pond v. New Rochelle Water Co., 143 id. 69; Ring & Son v. Winola Worsted Yarn Co., 228 N. Y. 127; Mandel v. Guardian Holding Co., Inc., 192 App. Div. 390.) The only doubt here upon the point arises from the attempt in the original judgment to reserve to the court the right to modify generally. I conclude, however, that the court had no power to make such a reservation as to the merits. The power of the court to modify as to the custody of the children and the support of the wife is expressly granted by sections 1759 and 1771 of the Code of Civil Procedure. It is doubtless true, as claimed by defendant's counsel, that the facts found in the original decision warranted the conclusion of abandonment therein made, and were sufficient to warrant a decree of separation in favor of the wife, but that did not warrant such an amendment of the decision and judgment upon the merits. Therefore, I conclude that the order amending and the amended judgment must be reversed. As to the original judgment appellant makes here two contentions: (a) That as no separation was granted to the defendant the court was without power to grant to her any of the incidents of that relief, such as the custody of the children and support by the husband; and App. Div.] Second Department, December, 1920. (b) That the findings against plaintiff's claims and sustaining the defendant's claim were against the weight of the evidence. As to the first of those contentions I think that it is not well made and should not here be sustained. The settled rule in this respect seems to be that in such an action where the facts are such as to warrant a decree of separation in favor of the wife, the trial court nevertheless has the power to award less than she is entitled to, namely, to award the custody of the children and support; but where the facts do not warrant such a separation the court has no such power. (Robinson v. Robinson, 146 App. Div. 533; Kamman v. Kamman, No. 1, 167 id. 423; Lesser v. Lesser, 187 id. 959. See opinion of Mr. Justice LAZANSKY in the record, not otherwise reported.) Applying the test of this rule to the instant case, the judgment stands approved, as the case is one where the findings warranted a decree of separation in favor of the wife, but for some reason, evidently the hope of final reconciliation of the parties, the trial court did not see fit to grant it. As to the second contention, namely, that the findings were against the weight of the evidence, I conclude also that that is not sustained by the record. As to the husband's claim of cruel conduct on the part of the wife and her abandonment, while his testimony if fully credited was in my judgment ample to sustain that, yet in each instance her testimony contradicted his, or offered a plausible and sufficient explanation which the trial justice evidently credited. As to the findings in favor of the wife that plaintiff had abandoned her, the proof was ample to sustain that. It consisted of the wife's written offer to return and live with him and his repeated refusal, as to all of which there was no controversy. The learned counsel for the appellant criticises that proof upon the ground that from the language of the wife's written offer and of her offer in court, it is palpable that both offers were made upon the suggestion of her lawyer. I think that that fact should not disparage their effect. Very likely the lawyer prudently advised her that the plaintiff's conduct did not warrant her in living apart from him if he would live with her, and, therefore, he advised her to make the offer. I do not attempt to review the very voluminous testimony Second Department, December, 1920. [Vol. 194. of the parties as to their differences. I am confident that I have fairly summarized it and that it was such that a finding upon the merits either way by the trial court was warranted in the sense that it would have to be sustained here. Hence, I conclude that the original judgment should be sustained. I advise, therefore, that the amending order and the amended judgment be reversed, and that the original judgment be affirmed, without costs to either party. RICH, PUTNAM, BLACKMAR and KELLY, JJ., concur. Amending order and amended judgment reversed, and original judgment affirmed, without costs to either party. SARAH GLICKMAN, Appellant, v. EDDY GLICKMAN, Respondent. Second Department, December 10, 1920. Husband and wife separation default of husband in paying alimony — validity of agreement by wife to take less than amount due and not to prosecute for contempt in future for failure to pay alimony - necessity that agreement be set aside before prosecuting for contempt. A stipulation entered into between a wife and her husband who was in jail under contempt proceedings for failure to pay alimony decreed against him in a judgment of separation, whereby she agreed to take less than the amount due and to reduce the weekly payments, and not to prosecute proceedings in the future to punish him for contempt on his default, is void for want of consideration. Said stipulation is void also, as it offends against section 51 of the Domestic Relations Law, providing in effect, that a wife cannot contract with her husband to relieve him from liability for her support, since the stipulation contracted away the only effective method whereby the wife could secure moneys for her support. Said stipulation is void also as against public policy which demands that a wife shall not be permitted improvidently to relieve the husband of his duty of support. Since the invalidity of the stipulation appeared on its face it was not necessary to invoke the power of a court of equity to set it aside before proceedings to punish the husband for contempt were instituted. APPEAL by the plaintiff, Sarah Glickman, from an order of the Supreme Court, made at the Kings County Special Term App. Div.] Second Department, December, 1920. and entered in the office of the clerk of the county of Kings on the 12th day of November, 1919, denying her motion to punish the defendant for his failure to pay alimony due her, and to adjudge defendant guilty of contempt. Rosalie F. Janoer [Julia V. Grilli with her on the brief], for the appellant. Aaron William Levy, for the respondent. RICH, J.: The decree of the court granting separate support and maintenance directed the defendant to pay to the plaintiff $30 each week commencing January 13, 1915. May 10, 1917, there was due and owing to plaintiff on account of such alimony the sum of $1,455. This amount was finally adjusted by defendant, but not until he had obtained plaintiff's consent to reduce the weekly allowance to $15. He did not pay the reduced amount, and in May, 1918, being in arrears $600, was adjudged in contempt of court and committed to the Kings county jail. It appears that plaintiff entered into a stipulation consenting to defendant's discharge from custody upon his paying $300 on account of said alimony, and his promise to pay $200 additional in installments. The stipulation reduced the amount of future alimony to $10 per week, and it was also "Further stipulated and agreed that the plaintiff, Sarah Glickman, hereby waives any and all such rights or right as she may or might have to institute any proceedings at any time in the future adjudging the defendant, Eddy Glickman, as guilty of contempt of court in this proceeding, and to have him committed therefor for the non-payment of any alimony or any part thereof in this proceeding, whether the same be for alimony accrued or to accrue and become due in the future in this action, it being the intention of the plaintiff to waive her rights, if any, to any contempt proceeding or contempt against the defendant for the non-payment of the alimony aforesaid under the decree in this action." Defendant since the execution of this paper has refused and neglected to pay any part of the $10 weekly allowance, and he was brought before the court at Special Term to show cause why he should Second Department, December, 1920. [Vol. 194 not be punished for his disobedience of the order, but has escaped punishment, and, in consequence, the payment of the sum of money due to his wife, on the ground that she " has stipulated away her right to punish defendant as for a contempt of court in failing to pay alimony." At the time the stipulation was made the indebtedness of defendant to the plaintiff was $600, and she was entitled to a weekly allowance of $30. She agreed to accept $500 and a weekly payment of $10 in full for the amount due, and it is claimed that this promise is sufficient consideration for the discharge of the original indebtedness and for the promise to refrain from instituting contempt proceedings. I cannot agree with this contention. The stipulation was void for want of consideration. It has never been held, so far as I am aware, that the payment of a part of a debt has been a consideration for the release of the remainder, and there are many cases holding that the performance of an act which the party is under legal obligation to perform cannot constitute consideration for a new contract. (Vanderbilt v. Schreyer, 91 N. Y. 392, 401; Robinson v. Jewett, 116 id. 40; Jaffray v. Davis, 124 id. 164.) This stipulation is void for the further reason that it offends against the statute, section 51 of the Domestic Relations Law, which provides that married women can contract with their husbands, except that a husband and wife "can not contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife." In the instant case it is clear that the wife contracted away the only effective method whereby she could secure moneys for her support. The case of Van Ness v. Ransom (164 App. Div. 483) is distinguishable in that in that case the parties were divorced and that there is nothing contained in the stipulation which tends to indicate that the wife intended to release the defendant from liability for alimony under the decree of divorce. A husband is bound by law as well as good morals to support his wife, and public policy demands that she should not be permitted to improvidently relieve him of his duty, which is not only owing to his wife but to the people at large. The stipulation is also void as being against public policy. It is urged that the plaintiff should be relegated to a court |