86 N.Y.S. 497 | N.Y. App. Div. | 1904
Lead Opinion
This is an appeal from a judgment entered upon a verdict for the plaintiff and from an order denying a motion for a new trial. The action is founded upon a contract alleged to have been made by Charles Broadway Rouss, the defendant’s testator, with Eva S. P. Rosseau, the mother of an illegitimate child, the infant plaintiff
As to this affirmative defense, it is sufficient to say that there is. nothing whatever in the evidence to sustain the allegation of false or fraudulent representations. When the cause came on for trial,, and before any proof was taken, a motion was made by the defendant to "dismiss the complaint on the ground, among other things,, that no consideration was stated for the agreement alleged therein. The motion was denied, and thereupon the plaintiff moved to amend the complaint in connection with the allegation respecting the consideration of the contract. It was charged in the complaint that
The power of the court to amend a pleading at the trial is regulated by section 723 of the Code of Civil Procedure, which enacts ■ that “ the court may, upon the trial, or at any other stage of the. action, before or after judgment, in furtherance of justice and on such terms as it deems just, amend any process, pleading, or other-proceeding, by adding or striking out the name of a person as a. party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to ■ the case; or, where the amendment does not change substantially the claim or defence, by conforming the pleading or other proceedings to the facts proved.” Referring to that section, it is said in Martin v. Home Bank (160 N. Y. 197) that “ the court has power ■ at the trial to amend a pleading by inserting an allegation material to the case, or where the amendment does not change substantially the claim or defense, by conforming the pleading to the. facts proved. This power may be exercised by the court at the trial, in furtherance of justice, and the statute which confers it has always received, in this court, a liberal rather than a narrow construction.”
Where a proposed amendment radically changes a cause of action it will not be allowed at the trial, but here that result does not fol- ■ low. The cause of action was still the same, namely, one based upon an alleged contract made by the putative father of a child to-furnish, at a certain: time, in consideration of the care and support-
The common-law relation of a mother to an illegitimate child is stated by Chancellor Kent in a few words (2 Kent’s Com. [14th ed.] 317): “ She has a right to the custody and control of it as against the putative father and is botind to maintain it as its natural guardian; though, perhaps, ithe putative father might assert a right to the custody of the child as against a stranger.” But notwithstanding this common-law obligation of the mother, the putative father may contract for the support of the child, and particularly where he has recognized the child as his own -and virtually adopted it. The natural obligation arising out of his relation to the child is a sufficient consideration for a contract on his part to pay for its support and maintenance. (Todd v. Weber, 95 N. Y. 181.) In the case cited the general rules of law applicable to the subject are considered in the opinion of the court by Danforth, J. “There is nothing illegal in an undertaking by a putative father to support his illegitimate child or to pay a sum of money in consideration of such support being furnished by another, though it be the mother of the child. If such was the consideration of this obligation and it was furnished by (the mother) she was at liberty to take it, payable to herself in her own right or for the benefit of her child.” (Hook v. Pratt, 78 N. Y. 376.) In Buchanan v. Tilden (158 N. Y. 121) Todd v. Weber is referred to as holding that the relation of parent and child, even between a father and his illegitimate daughter, is a sufficient consideration for a contract made by him with the relatives of that child to pay for her support and maintenance and that she,
A contract made by the putative father, therefore, whether with strangers or with the mother of an illegitimate child, has been .recognized as one based upon a sufficient consideration, where the duty of supporting and caring for the child is assumed by the promisee at the request of the promisor; for what the mother .assumes and undertakes to do is something more than to furnish that support which she is obliged to give to the child under her legal obligation. That obligation only extends to the support of the -child until it becomes self-supporting and in case the mother has the means with which to maintain the child. Without such means she could invoke the compulsory process of the law to coerce the father to support the child. Under the contract set forth here with the father, the mother was bound - to something more than mere ■support. She was bound to care for the child which involves a .greater obligation than that which is associated with mere support and maintenance, viz., furnishing it with food and raiment and shelter. Her personal care of the child is required by the contract and that relieved the father under any and all circumstances from the burden at any time of either caring for or otherwise providing for his illegitimate offspring.
We think a good consideration for the contract is made to appear whether regard is had to the allegation of the complaint as it was •originally made, orto the consideration as set forth in the amended -complaint.
The material facts of the case are abundantly proven. The infant plaintiff was acknowledged, from the day of his birth, by -Charles' Broadway Rouss as his son; and as long as the father lived
The making of the contract was also fully proven. Several witnesses testified to it generally. The mother’s testimony is very specific, but it was objected that she was not a competent' witness,, because she was interested in the event of the action, and that she was prohibited from testifying by the provisions of section 829 of the Code of Civil Procedure. The objection was overruled and an. exception was duly taken. ■ It is claimed that it was error to permit the mother to testify for two reasons : First, because she was liable for the support and maintenance of the plaintiff and the result of the action would be to relieve her of that obligation and transfer it-to the estate of Charles Broadway Rouss; and, second, that she was. interested in the event, because she employed an' attorney to prosecute the action and is liable for the costs, and that she. furnished security for costs of the action in the sum of $250 which was-deposited with the clerk of the court as such security. We think neither of these grounds of objection is tenable. The mother was. not a person interested in the event of the suit within the meaning of section 829 of the Code. In Connelly v. O' Connor (117 N. Y. 93) the court says: “ In construing that section it has been held that-the test of interest, where the witness is not a party, is that the.witness ‘ will either gain or lose by the direct legal operation of the. judgment, or that the record will be legal evidence for or against him in some other action. It must be a present, certain and vested interest, and not an interest uncertain, remote or contingent.’ (Citing Hobart v. Hobart, 62 N. Y. 81 ; Wallace v. Straus, 113 id. 238.) Connelly v. O'Connor was an action upon an alleged, agreement of the defendant’s intestate to pay plaintiff for the support of the intestate’s illegitimate child, and the mother of the child,.
The contract sued upon by the infant plaintiff here is not one in ;any respect made for the benefit of the mother and it is not at all ■clear that she is relieved by it from her obligation to support the •child until he becomes self-supporting.. But however that may be, it is within the class of contracts recognized as enforcible in the cases to which reference has been made. Nor do we think that at the time of the trial, when the mother was allowed to testify, she stood to the litigation in any such attitude as would render her incompetent as a witness. The mere fact that she employed an attorney to prosecute the claim of her son does not disqualify her, and we have nothing more than the naked fact that at one time she did employ an attorney to care for the interest of her child. Nor do we think that under the proofs as they are made in this record, the mother was disqualified as a witness by reason of having furnished the money to be deposited as security for costs. It appears that an undertaking for costs was also furnished. It is stated in the record that “ the appointment of J. Arthur Fischer as guardian ad litem for the infant plaintiff and that he filed a bond, was admitted by the counsel for the defendant.” This refers, undoubtedly, to a" bond for costs. It does not appear when that bond was given, but it must have been before the case was brought to trial. The effect of filing the bond, if it were filed after the deposit was made, was to render the witness competent, if she were disqualified before that time. At all events, the testimony with reference to this deposit is so vague and unsatisfactory that we cannot tell what its exact condition was, and we are unable to draw any other inference than that if a deposit were made, it was superseded by the filing of a bond.
We have examined the exceptions taken during the course of the trial and we do not find that any of them require particular consideration. That principally insisted upon is that the court erred in charging that “the adequacy of the consideration is for the ■parties to consider at the time of making the agreement, not for the
The judgment and order appealed from should be affirmed, with costs. ■ •
Van Bbunt, P. J., Hatch ' and Laughlin, JJ., concurred; Ingbaham, J., dissented.
Dissenting Opinion
I do not think that the proof disclosed á consideration to support the alleged promise made by the defendant’s testator to pay to the plaintiff the sum of $100,000 upon his tenth birthday. It is true that courts have gone very far in spelling out a consideration to support a promise made by the father of an illegitimate child for the benefit of the child, but notwithstanding the moral obligation that exists, a contract to pay money to an illegitimate child must be based upon a sufficient consideration, and so long as a consideration is required, it must be established before such a promise can be enforced. The evidence as to the agreement is the testimony of the plaintiff’s mother. She testified that her relations with the defendant’s testator commenced in. 1890, and continued until May, .1901; that the plaintiff was born on June 5, 1892, and the agreement sought to be enforced was made in the latter part of May, or the first part of June, 1901; that during this period and down to the time of his death the defendant’s testator supported the witness and her son ; that the defendant’s testator commenced paying her ten dollars á day or seventy dollars a week after the plaintiff’s expenses, commenced to increase in 1896; that the amount was paid in weekly payments. “ It was $10 á week, and he continued .to pay that amount up to the time- of his death. The money was paid for the benefit of the boy. For his support and care and my expenses also.” She further testified that in the latter part of May, or the first of June, she had a conversation with the defendant’s testator at which she told, him that she intended to leave the city and take her boy with her; that she preferred going where the surroundings would be more palpably moral; that to that the defend
I think the judgment should be reversed.
Judgment and order affirmed, with costs.
