Opinion
February 27, 1961
In an action (1) to set aside a separation agreement and (2) for a judicial separation, the plaintiff wife appeals from an order of the Supreme Court, Nassau County, dated October 24, 1960, granting defendant's motion, made pursuant to subdivision 4 of section 106 of the Rules of Civil Practice, to dismiss the complaint on the ground that on its face it does not state facts sufficient to constitute a cause of action. Order reversed, with $10 costs and disbursements, and motion denied. In our opinion, the complaint sufficiently pleads a cause of action to set aside the separation agreement (cf. Pomerance v. Pomerance, 301 N.Y. 254, 256; Galusha v. Galusha, 138 N.Y. 272, 284). Plaintiff has pleaded facts which may be held sufficient to excuse her failure to tender to defendant the balance of the consideration for the agreement remaining in her hands, as a condition precedent to the bringing of her action. If it shall appear on trial that a return of such consideration is required for an equitable disposition of the issues, an appropriate judgment may be entered after the facts have been determined. Defendant's time to serve his answer to the complaint is extended until 20 days after entry of the order hereon, or until such other date as may be mutually fixed by the parties. Nolan, P.J., Beldock, Ughetta, Kleinfeld and Pette, JJ., concur.