Edic v. Horn

Rogees, J. While the attorneys for the respective parties have stipulated: “ That the plaintiff, Helena A. Edic, and her husband, Charles J. Edic, lived separate and apart ever since March 1, 1897;” and although the written contract was dated March 1, 1898, one year after the separation, as stipulated, it is apparent that the writing was but the carrying out of an arrangement made while they were living together, having for its object, a virtual annulment of the marriage, by means of which he would forego his marital rights and relieve himself of all its responsibilities, save only to the extent of paying three dollars and fifty cents per week for the maintenance of the wife and the son, so long as she should live; and she would be free to go her own way. The evidence is this: The agreement recites that “they have mutually agreed to live separate and apart from each other during the remainder of their lives, and previous to such separation the party of the first part (the husband) has consented thereto, and has agreed that he will, out of his own money, pay to his said wife * * * the sum of $3.50 • each and every week during the term of her natural life.” In "pursuance of his said agreement” the husband covenants that the wife may live separate and apart from him in such place or places, and with such family or families, and with such relation or “ friends ” as she may desire; and that he will not disturb or trouble her for so doing, nor sue or trouble any other person for “receiving, harboring or entertaining her.” By examination it will be seen that the contract in question, except as to certain immaterial words, is a copy of that reported in Lalor’s Supplement. Florentine v. -Wilson, H. & D. 303. Of that Chief Justice Helson said: “I concur with the court below that the recitals in this indenture clearly show that it was made and executed in contemplation of and as an inducement to a future separation between the defendant and Eleanor, his wife, and ought not to be upheld. It recites that the parties had mutually agreed with each other to live separate and apart during their natural lives, and that the husband had proposed and agreed that he would pay for her support and maintenance a certain weekly allow [30] anee, in pursuance of which arrangement the articles of separation were entered into. * * * To give validity to such post-nuptial contracts would be but holding out to the parties temptations to the voluntary repudiation of conjugal rights and abandonment of marital duties — to encourage, in effect, a dissolution of the marriage contract.” The same doctrine as to contracts looking to a separation made while husband and wife are living together has been held in many eases. Rogers v. Rogers, 4 Paige, 516; Friedman v. Bierman, 43 Hun, 387, 390; Whitney v. Whitney, 4 App. Div. 597; Hungerford v. Hungerford, 16 id. 612, 613; S. C., 161 N. Y. 550; Poillon v. Poillon, 29 Misc. Rep. 666; S. C., 49 App. Div. 341. Agreements entered into, after separation and through the medimn of a trustee, are tolerated (Clark v. Fosdick, 118 N. Y. 7; Mann v. Hulbert, 38 Hun, 27; Magee v. Magee, 67 Barb. 487), but this is not one of them. My conclusion is that the contract in question is void as against public policy and cannot be enforced. Whether the defendant’s objection that the action, if maintainable, could only be brought in the name of the trustee (Clark v. Fosdick, 118 N. Y. 7; Mann v. Hulbert, 38 Hun, 27; Lord v. Lord, 68 id. 537); or whether the provision of the Code of Civil Procedure (§ 449) is permissive merely, so that the trustee might sue without joining the beneficiary, or both might sue together, or the beneficiary alone (Hubbell v. Medbury, 53 N. Y. 102; Cridler v. Curry, 66 Barb. 336; Bort v. Snell, 39 Hun, 388); or whether the objection was waived by omitting to demur (Code, §§ 498, 499; Nealis v. American Tube & Iron Co., 76 Hun, 220), it is not now necessary to determine. Flor need we inquire whether the contract, if otherwise valid, might or might not be effective after the death of the husband. It may be noted, however, that the following obligations have been held to survive: A promissory note payable thirty days after the death of the maker. Carnwright v. Gray, 127 N. Y. 92. A post-nuptial contract for payment of annuity to the [31] wife, so long as she should continue to he such or continue the widow of the promisor. Magee v. Magee, 67 Barb. 487. A' decree directing payment of alimony to a wife so long as she should live. Burr v. Burr, 10 Paige, 20; Forest v. Forest, 3 Abb. Pr. 144, 166; Johns v. Johns, 44 App. Div. 533, 537. The defendant also urges the want of sufficient assets of the testator’s estate to meet this (assuming it to be a liability) and the other obligations. This might embarrass collection, but I am unable to perceive how it constitutes a defense, if a judgment were recovered. Doubtless, on an accounting before the surrogate, the rights of the plaintiff and the other creditors could be ascertained and properly adjusted. This decision, therefore, is placed solely upon the ground that the contract between the plaintiff and her husband is against public policy and void. The complaint must be dismissed upon the merits. Complaint dismissed.