119 N.Y.S. 686 | N.Y. App. Div. | 1909
We agree with the learned trial' justice that the contract was void, as against public policy. We also think it was contrary to the
In Speck v. Dausman (7 Mo. App. 165) a contract similar to' this was condemned, the court saying: “ It is quite settled that contracts between husband and wife, so framed as to have effect only on condition that a divorce should be granted, are contrary to public policy, and will not be enforced by the courts. Their tendency is to interest the party to be benefited in procuring or ■ permitting a divorce. And though chancery will recognize and enforce some liabilities between husband and wife growing out of implied trusts, •and even some growing out of express contracts, yet the courts will never lend themselves to the enforcement of a contract intended to promote the dissolution of marriage.”
In Trust Company of America v. Nash (50 Misc. Rep. 295) the court said of an agreement there under consideration that if it “ could fairly and reasonably be construed as offering an inducement and advantage to the wife if she would procure a divorce from her husband it would clearly be contrary to public policy and void,” and cited- and distinguished the case of Speck v. Dausman (supra).
It has been held that an agreement by a wife to compensate her attorney for his services in prosecuting for her an action for separation by giving hitn a percentage of the alimony to be recovered is against public policy for the reason that it tends to produce a dissolution of the marriage contract. ( Van Vleck v. Van Vleck, 21 App. Div. 272; Matter of Brackett, 114 id. 257.)
Recognizing the' right of husband and"'wife living separate and apart from each other to contract under proper conditions for the proper support and maintenance of the latter, nevertheless no such contract can be sustained where, as in this case, no benefit is to be derived therefrom by the wife except in the event of the dissolution of the marriage. It is clear beyond question that the effect of this contract was to stimulate her energies in bringing about such a result. Only by her success in so doing could she receive any benefit under the contract. More than that, by its express provisions she was deprived of all right to make any claim for support or maintenance, or any kind of claim against her husband’s property
This agreement in question relates only to the pecuniary affairs of the parties and in respect thereto the public welfare is rio more concerned than if the parties were not husband and wife. Plaintiff does not attack the .judgment of divorce, arid so far as appears is content therewith.- . The annulment of, this contract by the court
It should be observed, however, that if this contract is void as against public, policy it will not stand in the way of such provision for the support and maintenance of the plaintiff as the court may deem proper, and an action to have it vacated is unnecessary. (Maney v. Maney, 119 App. Div. 765.) While the court for the reasons stated will not vacate the contract, neither will it enforce it ñor give it any recognition except to take into consideration the benefits which plaintiff may already have received thereunder when she makes application in.proper form against the defendant for suitable provision for her support and maintenance.
It would seem also that the judgment is wrong in not requiring plaintiff to make restoration of what she has received under the contract so far as it is in her power to do so. (Hungerford v. Hungerford, 161 N. Y. 550.) It is alleged in the answer, which, for the purposes of this appeal must be taken as true, that the household furniture, which plaintiff received under the contract was worth-$650.. It does not appear that she cannot return this property nor that she has expended for her support what the defendant paid her under the contract.
The judgment should be reversed, without costs, and a new trial granted.
All concurred, except Smith, P. J., not voting; Kellogg, J., concurred in result.
Judgment reversed, without costs, and new trial granted.