| N.Y. App. Div. | Jul 1, 1899
- The plaintiff brought this action as á substituted trustee of the wife, under a separation agreement between her and her husband, the defendant, to recover a balance which he claimed to be due by virtue of the terms of such agreement. After the evidence was all in on both sides, the jury, under the direction of the court, found a verdict in favor of the plaintiff for the full amount demanded, with the addition of interest.
The principal questions which arise upon this appeal relate to the validity and construction of the separation agreement, the legal status of the plaintiff and his right to maintain the suit as the successor of the trustee originally named in the agreement, and the
It appears that Mr. and Mrs. Ourning were married in 1877, and that they entered into the articles of separation in question on or about December 22, 1887. The parties, to that agreement were Man A. Ourning, of the first part, Maud A. Ouming, his wife, of the second part, and Mary L. Ohamberlain, as trustee of the said Maud A. Caming, of the third, part. After reciting that divers disputes and unhappy differences had arisen between the husband and wife, for which reason they had consented and thereby did consent and agree to live separate and apart from each other during their natuthl lives, the agreement provided that it should be lawful foi the wife thereafter to live separate and apart from her hpsband, and that he would not molest her, or, without her consent, visit her, or claim or demand any of her property, arid, further, that he would "well and truly pay, or cause to bepaid, for and towards the better support and maintenance of his said wife," a certain weekly allowance and other sums in the contract specified. On the other hand, Mary L Ohamberlain, the trustee, covenanted and agreed with the husband to indemnify him against all debts of the wife contracted or thereafter to be contracted by her and on her account, and the contract expressly provided that if: the husband should be compelled to pay any such debt or debts, the trustee would repay the dame to the husband on demand.
Deferring to the rule that an agreement for a future separation, between a husband and wife is not enforcible, because opposed to good morals and public policy, the learned counsel for the appellant argues that the language of this agreement'shows it to be executory in its character, and, therefore, brings it within the condemnation of the law. Thus, the agreement provides that the parties “ hereby do consent and agree to live separate and apart from each-other during their natural life” and, in another place, that it shall be “ lawful for her, his said wife, at all times hereafter, to live separate and apart from him.” But the contract is to be viewed in the light of the admitted, allegation of the complaint, that the defendant and his wife had separated prior to the making and execution of said articles of separation. An agreement of this character,; made under such circumstances, through the intervention of a
As to the construction of the agreement, it is true that it does not provide in terms for any payment to the trustee, the engagement being that “ the said party of the first part shall and will well and truly pay, or cause to be paid, for and towards the better support and maintenance of his said wife the following sums.” We think the fair import of this language, occurring in such a contract, is-that the payments are to be made to the trustee — at all events, if and when the trustee so requires. The fact that the husband actually made the payments directly to the wife, with the assent of the trustee does not change the character of the contract in this respect. There can be no doubt that the trustee’s undertaking to indemnify the husband and hold, him harmless against any debts of his .wife was based upon the understanding that the trustee was to have control, if need be, of the money which the husband contributed for the wife’s support, in order that the trustee might protect herself by seeing that such money was really applied to the maintenance of the wife, and not otherwise used.
In 1891, upon a petition presented by Mrs. Cuming and upon notice to her husband, the Supreme Court in Kings county made an order removing Mary L. Chamberlain from her position as trustee under the articles of separation of December 22,1887, and appointed William Hughes, the plaintiff in this action, to act as trustee in her place and stead, upon giving security in the sum of $250. This security was given in the form of a bond to the People of the State of New York, the condition of which obligation was that it should be void if the obligor should well and faithfully execute the trust created by the separation agreement. It is conceded that if an action had been brought for the purpose of removing the original trustee; and appointing a new one, and a court of equity had made a decree in such a suit providing for the appointment of a new trustee, such a judgment might have been effectual, for the purpose; but the appellant insists that there is no warrant of law for accomplishing this result by a proceeding upon petition. The record of the special
But it is further argued that, in point of fact, Mary L. Chamberlain was never a trustee in the sense that a Court of Chancery had jurisdiction over her; but was merely a party to an agreement of indemnity, In place of whom the court could not compel the husband to accept the present plaintiff or anybody else as indemnitor. If this view .be correct, an agreement made by a husband to provide, through, the intervention of a trustee, for the maintenance of his wife, from whom he has separated, would always be terminated by the death of the trustee named in the agreement, and could also
The argument that the articles of separation were rescinded by "the subsequent • cohabitation of the husband and wife rests on the testimony of the husband to the effect that for a couple .of -months in 1892 he called to see Mrs. Cuming frequently at the house in which she then resided, and .had sexual intercourse with her fifteen or twenty times during that period. Mrs. Cuming denied this statement, but as a verdict was -directed against the plaintiff it 'must be taken as true for the purposes of this appeal. The question is, therefore, directly presented whether these acts of intercourse amount to such a resumption of the marital relation as to destroy the agreement of separation. Mr. Bishop states the rule to be that a renewal of cohabitation commonly terminates the agreement, since the usual consideration for it has ceased to operate. (1 Bish. Mar., Div. & Sep. § 1283.) “Articles of separation between husband and wife, in which another joins with her as trustee,” said Bradley, J., in Zimmer v. Settle (124 N.Y. 37" court="NY" date_filed="1891-01-14" href="https://app.midpage.ai/document/zimmer-v--settle-3576739?utm_source=webapp" opinion_id="3576739">124 N. Y. 37), “ although valid when made, are rendered void by resumption by them of their conjugal relation.” In Carson v. Murray (3 Paige, 493, 501) Clian•cellor Walworth, after declaring that agreements, for separation ■could not be supported, either at law or in equity, unless the separation had already taken place, or was to take .place immediately • upon the execution of the agreement, went .on to say: “The contract will also be considered as rescinded if the parties afterwards
There is no pretense of any such reconciliation in the case at bar. The parties never resumed living together, iii one dwelling place, •as husband and wife. Nor could either of them have intended to affect the separation agreement by such intercourse as they had, for the husband continued to make payments under the contract'for a long time thereafter. The learned trial judge was, therefore, right in refusing to allow the case to go to the jury on the question ■whether the parties, by cohabiting together, had not rescinded the agreement.
Two other points should be noticed. It is suggested that the trial court erred in excluding evidence showing that after the separation agreement was made and before the present action was brought, a suit for divorce was instituted by Mrs. Cuming against her husband, in which an order for alimony was granted. This order the appellant argues operated as a waiver of the separation agreement, but I
The moneys for which the plaintiff sued were alleged to have become due in the years 1896 and 1897. There was no plea of payment in the answer. On the trial the court excluded evidence offered by the defendant to show that he had largely overpaid his wife in the years prior to 1896, so that nothing now remained due to her. Under the pleadings this ruling was correct. Payment is an affirmative defense, and. if the defendant desired to avail himself of that plea he should1 have set it up in his answer. ' His application, in the midst of the trial, to amend by inserting a plea of pay ment. was properly refused. A motion to amend an answer by introducing a new defense should be made at Special Term.
Judgment and order affirmed, with costs.
All concurred.
Judgment and order, affirmed, with costs.