In Passmore v. King (186 A.D.2d 241, lv dismissed 81 N.Y.2d 1007, 599 N.Y.S.2d 806, during their pending divorce action, James Crim and Vivian Crim executed a written agreement in order to settle their respective financial property rights and all other matters arising out of the marriage. The agreement, emphasized the Court, provided "as and for Equitable Distribution" that the wife would pay the husband $ 18,000 in installments and $ 40,000 pursuant to a contract of sale for the marital premises. The husband died before closing of the marital home and entry of a judgment of divorce. The husband's estate commenced an action to recover the $ 58,000 under the agreement. The majority in Passmore found that the agreement clearly established the parties' intent that the payments were to be an equitable distribution of the marital property. Finding that the action is more "properly characterized" as one to effectuate equitable distribution rather than damages for breach of contract, under constraint of Sperber v. Schwartz, the majority held that the action for equitable distribution abated with the husband's death and affirmed the trial judge's dismissal of the estate's action.