173 Misc. 844 | N.Y. Sur. Ct. | 1940
The principal issue in this accounting proceeding involves the disposition of the claim against the estate asserted by Ella C. Noel, the widow of the decedent, for the sum of $7,300. The claim is based upon a separation agreement entered into between the parties by which the husband obligated himself to pay to his wife the sum of fifty dollars per month for her support and for the maintenance of their infant daughter. The defense of the executors is that the wife breached the agreement in a material and important aspect by her refusal to permit the husband to visit his daughter under the privilege accorded to him by its terms and that thereby the husband was relieved of the duty of making the monthly contributions to the wife.
The separation agreement was executed on November 2, 1925. The parties were then living separate and apart from each other. The husband agreed to pay the sum of fifty dollars a month commencing on November 1,1925. There were other financial arrangements provided in it. By a further provision the wife was given the custody of the daughter. .The husband was granted the right
It appears from the evidence that the husband paid the monthly installments required of him until August of the year 1926. Controversy then arose between the parties by which the right to visit the child was refused by the wife and the husband refused to continue to pay the monthly amount. It was apparently claimed by the wife that the physical, mental and nervous condition of the husband had a deleterious effect upon the wife and the daughter and justified the denial of the privilege of visitation granted to him under the agreement. He had contracted an organic disease, known as epidemic encephalitis, which affected his physical appearance. During the period of the controversy and in the month of October, 1926, he procured a writ of habeas corpus in the Supreme Court of Nassau county against his wife with a view towards enforcing his right to visitation of his child. The question of his mental incompetency was raised by the wife. Mr. Justice Mitchell May, who heard the proceeding, then appointed a competent and qualified specialist and neurologist to examine the husband for the purpose of determining his competency. In his report, which is in evidence, he certified that the husband could not be regarded as insane from either a medical or legal standpoint. He further certified that in his opinion the husband “ should be allowed to see his child at stated intervals, as I do not believe that he would harm the child in any way.” An order was then made by Mr. Justice May terminating the proceeding and designating specified days when the father could visit his child. It has been clearly established by the evidence that the wife frustrated the right of visitation granted by the terms of this order.
The surrogate holds as the trier of the facts that the wife, by her refusals both before and after the pendency of the habeas corpus proceeding, breached the separation agreement in a material and .important phase and that thereby the husband was relieved of his obligation to pay the monthly installments.
A parallel case directly in point was considered by the Court of Appeals in Duryea v. Bliven (122 N. Y. 567). There the separation agreement provided that the two children of the parties should remain with the mother, subject to the right of the father to visit
“ The agreement of the wife and trustee to permit the husband to associate with his children was not only valid, but was a material part of the contract which could not be violated by the wife, and a recovery be sustained in her favor for her benefit of the sum which he stipulated to pay monthly.
“ On the trial the defendant testified that he was not permitted to see his children except in the presence of third persons, and that they were not allowed to visit him when he was sick. If this was true, and without justification, it was a violation of the contract on the part of the wife, and no recovery could be had for her benefit while she was refusing to perform on her part. A contract of this character is incapable of the exact performance which may be made of a business one, but, nevertheless, both parties are required to attempt to carry it out in good faith. There was a clear conflict in the evidence, and in the inferences to be drawn from it. The defendant testified that on many occasions he was denied the right to associate with his children without any apparent or sufficient reason. The wife and the trustee, by their evidence, denied that some of the refusals occurred, and gave reasons why, in other instances, the children were not present when the father called. Whether the reasons put forward were the real ones, and if real, whether they were sufficient, was a question to be determined by the jury, and the court was not justified in declaring, as a matter of law, that the wife had performed her contract, or that her failure to perform it was justified by the evidence. A question of fact .arising upon the evidence as to whether the wife had violated the contract in the respects complained of, it was error to direct a verdict for the plaintiff, for which the judgment should be reversed and a new trial granted, with costs to abide the event.”
It will be noted that the Court of Appeals held that the direction of verdict by the trial court in favor of the plaintiff, the trustee, was improper. Moreover, specific instructions were given for the guidance of the triers of the facts upon the new trial as to whether the wife had breached the contract, whether she had refused the husband the right of visitation and whether the reasons advanced for the refusals were the real reasons, and, if real, whether they ¡were sufficient.
The surrogate is compelled to reject the testimony of the attorney for the claimant that he made several efforts to collect the monthly installments for support after the date of the Supreme Court order in 1927, or that the unsatisfactory financial condition of the husband prevented the bringing of an action. The testimony of the attorney is nullified by bis own letter dated January 31, 1930, which was addressed to the husband, wherein the attorney stated that the wife was “ unwilling to enter .into any arrangement with you for visits at her home.”
The claim of the widow, Ella C. Noel, is, therefore, dismissed in its entirety.
The personal claims of the executor and executrix are allowed in the amounts set forth in the account.
The compensation of the attorney for the executor is allowed in the sum of $650, plus disbursements in the sum of $30.12. Costs in the accounting proceeding have been waived by him.
Submit decree on notice settling the account accordingly.