¶1(dissenting). I do not concur in the view that the defendant, for the sum of $3,000, nor for any other sum, could purchase perpetual immunity from the duty to support his wife when changed conditions intervened. No doubt husband and wife, “ supplementing the obligations arising from the marital relation ” (Goldman v. Goldman, 282 N. Y. 296), could agree, within reasonable limitations, on the proper sum to be paid for the support of the wife. No doubt the court, in the absence of a substantial change in circumstances, would give effect to such an agreement in its judgment of divorce or separation. (Galusha v. Galusha, 138 N. Y. 272.) “ No public policy of the State prevents the parties from foreclosing by agreement a controversy between themselves as to what constitutes the amount which the husband should pay, and the court will ordinarily direct the husband to pay the amount which the parties agree constitutes suitable provision for the support of the wife.” (Goldman v. Goldman, supra.)But I find no decision that for the payment of a lump sum, though made without fraud and reasonable in amount when made, the husband may forever divest himself of an obligation which, in the interests of society, the law imposes upon him and with respect to which the statute (Dom. Rel. Law, § 51) declares that “ husband and wife can not contract … to relieve the husband from his liability to support his wife.” These provisions of the Domestic Relations Law are strengthened by section 1155 of the Civil Practice Act to the effect that “ The Court … dissolving the marriage … may require the defendant to provide suitably … for the support of plaintiff, as justice requires, having regard to the circumstances of the respective *475parties.” The statement of the court in Goldman v. Goldman (supra),that “ The State does not permit the husband to purchase exemption from the marital obligation to provide ‘ suitably ’ for the wife and children, for that is an obligation which concerns the State as well as the parties to the marriage,” is an expression of these principles.
¶2The decision now that the court is without power to require the husband suitably to support his wife, no matter what change in circumstances may have occurred between the date of their contract and the date of the decree, will in many cases have serious results. If during this intervening period — ten years in the present case — the sum paid shall have been lost without fault on the part of the wife, or if inflation should render inadequate a sum which was adequate before, the court will be helpless to afford relief. It is conceded that if conditions had changed to the disadvantage of the husband the court would not be compelled by the agreement of the parties to make a decree requiring him to pay more than his circumstances justify but would relegate the wife to an action on the contract. Yet it is to be decided that no matter how destitute may be the wife nor how prosperous the husband, the court is constrained in its decree to enforce their private bargain even though it violates the mandate of these statutes (Dom. Rel. Law, § 51, and Civ. Prac. Act, § 1155) and the enlightened public policy from which they derive.
¶3To the extent, therefore, that it is held that the Special Term was without power to award alimony on account of the payment to the wife ten years previously of the sum of $3,000 which has now been lost, I dissent from the opinion of the court.
¶4Judgment modified by eliminating therefrom the provision with respect to payments for support of the plaintiff, and as so modified, affirmed, without costs. Settle order on notice.