Van Order v. Van Order

LEARNED, P. J. : This is an action on an agreement made during coverture between husband and wife, by which he agreed to pay her' a certain sum of money. The consideration is the discontinuance of an action brought by her against him for alleged adultery, the condo-nation of such adultery; an agreement that he shall have the custody of a child of the parties, and that she will relinquish her dower and claims on his estate. There are two defenses: first, that the agreement is void; second, that the defendant has been divorced from the plaintiff for adultery, committed subsequently to the agreement. The so-called married woman’s acts have not removed the general disability of married women. (Perkins v. Perkins, 62 Barb., 531.) A contract like this was void at common law. (Beach v. Beach, 2 Hill, 260; 1 Black. Com., 442.) The plaintiff cites cases to show that a husband may now enter into such an executory contract with his wife. But they do not sustain that position. Rawson v. Penn. R. R. Co. (48 N. Y., 212), only held that paraphernalia, gifts of the husband, were now the property of the wife; Whitney v. Whitney (49 Barb., 319), that the wife could sue her husband for her property wrongfully converted; Adams v. Curtis (4 Lans., 165), that she might sue a firm for her services, although her husband was one of the partners; Wright v. [317] Wright (54 N. Y., 437), that a note made before marriage, in consideration thereof, was valid after marriage. The present contract does not purport to concern the separate property of the wife. As an agreement to release dower it is invalid. (Townsend v. Townsend, 2 Sand. Sup. Ct., 711; Winans v. Peebles, 32 N. Y., 423.) It is not even sealed or acknowledged. The consent that the defendant should have the custody of the child is no consideration, and to enforce a promise by a husband :o pay money to his wife, in consideration of the condonation of adultery, would, I think, be a violation of rules of law, and principles of public policy. (Freethy v. Freethy, 42 Barb., 641; Gould v. Gould, 29 How., 441; Longendyke v. Longendyke, 44 Barb., 366.) The plaintiff insists that this is not an agreement for a separation. It is therefore unnecessary to consider whether it is invalid, when viewed in that light. Nor need we discuss the effect of the subsequent divorce. We think the agreement to pay the money was void, and the judgment and order should be reversed and a new trial granted, costs to abide the event. Present — Learned, P. J., Boores and Boardman, JJ. Judgment and'order reversed, new trial granted, costs to abide event.