107 N.Y. 677 | NY | 1887
The following is the opinion in this action in full:
“ The plaintiff and defendant are husband and wife, and at the ripe ages of eighty and seventy-three, and after a married life of almost half a century, have quarrelled and separated. The wife brought an action for a limited divorce upon the ground of cruel and inhuman treatment. Pending the trial a settlement was agreed upon to enforce which the present action is brought. The substance of that
“ The difficulty with this defense is that it is unproved. It is not shown that at the date of the agreement the two sons had any such claim against their father in fact or that they were conscious of such a right, or that the wife knew it if it existed. No competent proof of any such facts was offered or given, and the requests to find prepared by the defendant’s counsel to the number of fifteen, cover no such facts, and indeed do not allude at all to the defense of mistake. It was thus plainly abandoned on the trial and has no proof to support it. The defendant did not even establish that such a claim had been made upon him subsequent to the agreement.
“The questions remaining are as to the validity of the written contract and its force and effect. It is claimed to be against public policy because by its terms the wife agrees to five separate and apart from her husband. In the pending action for divorce, the plaintiff would have been entitled, if successful, to a decree of separation and a suitable allowance from the estate of her husband, for her support and maintenance. It is difficult to see how it could, be in accord with public policy to award such relief, and yet against, public policy for the husband to concede it in advance of the decree and as a compromise of the existing litigation. Public policy does not turn on the question whether the husband fights out the quarrel to final judgment. Where the separation exists as a fact and is not produced or occasioned by the contract, the consideration of the husband’s agreement to pay is his release from liability for the support of his wife. (Calkins v. Long, 22 Barb. 97; Mann v. Hulbert, 38 Hun, 27; Carpenter v. Osborn, 102 N. Y. 552.) A further objection that the contract was first broken by plaintiff is answered by the fact already suggested that her
“ The judgment should be affirmed with costs.”
reads for affirmance.
All concur.
Judgment affirmed.