Rosseau v. Rouss

Patterson, J. : 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 — 232 — herein. The substantial averments of the amended complaint are,, after referring to the infancy of the plaintiff and .the appointment: of his guardian ad litem, that the defendant’s testator, Charles. Broadway Rouss, was the father of the infant plaintiff; that at. various times named, at thé city of ¡New York, the said Charles. Broadway Rouss made, entered into and reaffirmed a contract with Eva S. F. Rosseau, the mothér of the child, wherein and whereby, in consideration of the promise, of the said Eva S. F. Rosseau to care for ánd to provide for the maintenance of the said Charles B. Rosseau, a® he should direct, until the 4th day of June, 1902, said Charles Broadway Rouss promised and agreed to pay to and settle upon the said! Charles B. Rosseau on the 4th day of June, 1902, the sum of $100,000, for the benefit, support and maintenance of the said Charles B. Rosseau; that the said Eva S. F. Rosseau performed the conditions of the contract to be performed by her; that Charles Broadway Rouss died on the 3d of March, 1902, leaving a last will and testament which was duly proven and letters testamentary were issued upon such will, the defendant being the executor thereof that a claim was duly presented to the executor and was rejected by him, on the ground that such claim was riot just or due and the-allegations, and proof thereof had no foundation in fact. The answer contains denials of the substantial allegations of the complaint relating to the making of the. contract and the paternity of the child. It sets up affirmatively that if Charles Broadway Rouss had made or entered into a contract or agreement with Eva S. F. Rosseau as alleged in the complaint, the promise or agreement so made was obtained under false and fraudulent representations made by Eva S. F. Rosseau as to Charles Broadway Rouss being the father-of the child. 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 — 233 — that contract was made “ in consideration of the promise of the said. Eva S. F. Rosseau to care for and provide for the support and maintenance of the said Charles B. Rosseau until the 4th day of June, . 1902.” In that connection, as amended, the allegation of the complaint as to consideration reads,, that “ Charles Broadway Roussmade, entered into and reaffirmed a contract with the said Eva S. F. Rosseau, wherein and whereby, in consideration of the promise • of the said Eva S. F. Rosseau to care for and provide for the support and maintenance of the said Charles B. Rosseau, as he should., ■direct, until the 4th day of June, 1902, the said Charles BroadwayRouss promised and agreed to pay to and settle upon the said Charles B. Rosseau-the sum of one hundred thousand dollars on the-. 4th day of June, 1902, for the benefit, support and maintenance of' the. said Charles B. Rosseau.” The defendant excepted to the.allowance of the amendment but did not urge surprise. 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 support234 of that child by its mother, a sum of money for the child. The words introduced in the complaint. are simply in amplification of that consideration. There remained the same promise; the same obligation reposed on the promisee — the manner in which that obligation was to be. performed only being added. Such an amplification of an allegation cannot be regarded as introducing into a complaint a new or different cause of action. It is suggested that it has that effect, because, as first pleaded, there was an insufficient consideration set forth; that nothing was then alleged which cast upon the mother any other duty Or obligation than that which by the common law rested upon her; that the additional words imposed upon her a further obligation* namely, that of supporting and maintaining the'child according to the wishes -of the promisor. 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, — 235 — the child, can enforce it by action. As we have seen in Hook v. Pratt (supra), the same right accrues even where the contract is made, with the mother. In Hicks v. Gregory (8 M., G. & S. 378) the Court of Common Pleas in England sustained a judgment in an action in assumpsit brought by the mother of an illegitimate child upon a promise made by the reputed father to allow her £100 a year during the life of the mother and the life of the child, to be paid quarterly, for the proper bringing up of the child; and it was held that the letter disclosed a sufficient consideration for the promise to pay the annuity, viz., the mother properly bringing up the child. 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 — 236 — he exhibited great affection, for the child, and evinced the intent of providing for him with liberality. So far as it could be done, without complying with technical formalities, he virtually adopted the child.. He recognized to the fullest extent his obligation to care for him,, and he frequently referred to him as the son of a rich man and made ample contribution for the education, the comfort and the welfare of the son. He enjoyed his companionship; had him with him frequently and was reluctant to part with him, even for short, periods of summer vacation, and bestowed upon him the tenderness, of a father for a beloved child. 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,. — 237 — who was not a party to the action, was called as a witness for the plaintiff to prove the contract with the intestate, and it was held :that she was not a party or person interested in the event of the action, within the meaning of section 829 of the Code. (See, also, Healy v. Healy, 55 App. Div. 315 ; affd., 166 N. Y. 624 ; Eisenlord v. Clum, 126 id. 552.) 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 — 238 — court when it is sought to be enforced.” The word “ adequacy,”' as used here, evidently does not refer to. the legal sufficiency of the ■consideration, but to the inducements which operated upon the minds of the parties in making the contract. The legal sufficiency of the consideration was not submitted to the jury by this request. The judgment and order appealed from should be affirmed, with costs. ■ • Van Bbunt, P. J., Hatch ' and Laughlin, JJ., concurred; Ingbaham, J., dissented.