186 A.D. 77 | N.Y. App. Div. | 1919
Lead Opinion
I agree that the contract is not contrary to public policy and that it is founded upon a legal consideration. As I view the contract, however, the intention was that the primary obligation to provide the plaintiff with a regular income of $3,600 a year should be cast upon the plaintiff’s husband, whose duty it was during his lifetime to support and maintain .the plaintiff, and after his death upon his estate, and that the defendant should be hable as surety in the event of nonpayment by his son during his lifetime, and after the son’s death in the event that the son’s estate was insufficient to provide the stipulated income. The situation is peculiar in several respect's. In the first place, although one of the main inducements to the contract on the part of the plaintiff was that she should be assured of a regular and stipulated income, this suit was not instituted by the plaintiff until after her husband’s death and more that eight years after the agreement was made; yet recovery is sought for monthly install-
The order should be reversed, with ten dollars costs and disbursements, and the demurrer to the complaint sustained, with ten dollars costs, with leave to serve an amended complaint within twenty days on payment of costs.
Laughlin and Smith, JJ., concurred; Clarke, P. J., and Merrell, J., dissented.
Dissenting Opinion
This is an appeal from an order overruling defendant’s demurrer to the complaint upon the ground that there is a defect of parties defendant, and also that the complaint does not state facts sufficient to constitute a cause of action.
The action is brought by the plaintiff to recover of the defendant the sum of $29,600, plus $7,576 interest, balance claimed by plaintiff her due upon a three-party contract entered into April 7, 1909, between James M. Rodgers, plaintiff’s husband (now deceased), the plaintiff, and the defendant, John C. Rodgers. Plaintiff’s husband died February 6, 1917. Prior to the making of the contract, for an alleged breach of which plaintiff seeks to recover herein, an action was pending between plaintiff and her said husband for an absolute divorce by reason of the misconduct of plaintiff’s husband. On April 7, 1909, in consideration of the discontinuance of such action and of plaintiff’s agreement to again live and cohabit with her husband, the defendant in this action and the said husband entered into a written agreement with the plaintiff, a copy of which is annexed to the complaint. This agreement recited the relationship of the parties, and that unhappy difficulties had arisen between them, and as to the pendency of the action for absolute divorce; and that the husband and the father-in-law, the defendant herein, were desirous of obtaining a discontinuance of the action which plaintiff had brought for a divorce, and
In her complaint, the plaintiff alleges that, pursuant to said agreement thus entered into, she discontinued her action for an absolute divorce and resumed her married life with her said husband and continued to live with him until his death, which occurred on February 6, 1917, and that she has duly performed all the conditions on her part under the terms of said agreement. Plaintiff further alleges that the defendant has failed, neglected and refused to comply with the terms of the agreement aforesaid in that he has failed to make said monthly payments of $300, none of which payments have been made by defendant to the plaintiff, as she alleges, except the sum of $1,900 paid to plaintiff by said defendant at various times between the time of the execution of said contract and the 1st day of March, 1915, and that there is now due and owing from the defendant to the plaintiff the balance of said monthly payments, amounting to $29,600, besides interest, amounting altogether to the sum of $37,176.
As before stated, defendant has demurred to plaintiff’s complaint upon the ground that there is a defect of parties defendant, and on the further ground that the complaint does not state facts sufficient to constitute a cause of action,
But the question presented on this appeal is as to whether or not the allegations of plaintiff’s complaint were sufficient to constitute a cause of action against the defendant. The contract upon which plaintiff seeks to recover herein was the agreement of the defendant and plaintiff’s husband to pay to her the sum of $300 per month, so long as she should live. This was a joint undertaking of defendant and plaintiff’s husband, for the performance of which they were jointly obligated. Either of the obligors might make the monthly payment to plaintiff, or it might be made by them jointly, and payment by either would, pro tanto, discharge his joint obligor. In case of default during the lifetime of plaintiff’s husband, she could not have proceeded to enforce the agreement against either obligor individually, but would have been required to proceed against them jointly. But, as above stated, the husband having died, plaintiff was at liberty to pursue the survivor. Plaintiff’s complaint, wherein she seeks to hold the defendant personally liable for the failure to pay her her monthly allowances, is silent as to any payment having been made by her husband during his lifetime, the allegation of the complaint being merely that the defendant has failed, neglected and refused to comply with the terms of the agreement, by failing to pay plaintiff the moneys therein provided, and that there is now due and owing from defendant to plaintiff the balance of $29,600, for which, with added interest, plaintiff asks judgment. There is no averment in the complaint that, during his lifetime and when he was jointly liable with the defendant, plaintiff’s husband failed or refused to pay her the moneys provided by the agreement. In this respect we think plaintiff’s complaint is defective, and, in the absence of an allegation that the moneys for which she is claiming were not paid by her husband during his lifetime, we do not think the complaint is sufficient to authorize a recovery against the defendant for install
The order appealed from should be affirmed, with ten dollars costs and disbursements, with leave to the defendant to withdraw the demurrer and to answer upon payment of said costs and ten dollars costs awarded upon the motion at Special Term.
Clarke, P. J., concurred.
Order reversed, with ten dollars costs and disbursements, and demurrer sustained, with ten dollars costs, with leave to plaintiff to serve amended complaint on payment of said costs.