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that it contains all that the parties intended | wise rendered ineffectual by the decree of to agree to, and that their minds met upon. absolute divorce granted to the wife. By the terms of the agreement under consid- This case is free from the question often eration, the defendant agrees to pay to the involved in this class of cases, arising from plaintiff, for and towards the support and the allowance of a greater or less amount in maintenance of his wife, Jennie Fosdick, the decree of divorce than the amount proand their children, the yearly sum of $2,500, vided in the article of separation. The defor and during the period of her natural cree of divorce made no provision for alimolife, unless she remarries, and that, in case ny. Nor did the decree change the provisof the death of the two children, the amount ion in the article of separation in relation to to be paid shall be reduced to $2,000, and the custody and control of the children, as I that, in case of the death of either said do not apprehend that the omission of the husband or wife, the agreement was to be privilege of visiting the children by the faat an end, and have no further force or ther and grandfather from the decree changes effect. Thus it will be seen that an applica- at all that right as provided in the agreement. tion for or the obtaining of a divorce by The agreement remains unaffected in that and the wile was not by the agr ement made a other respects, and capable of enforcement condition of the payment of the money, or in by any of the parties to it by all proper means. any manner to affect the defendant's obliga- Judgment absolute should be granted, with tion to pay it. It seems to me very clear costs, in favor of the respondent. All conboth upon principle and authority, that the cur, except FOLLETT, C. J., dissenting, and defendant's contention is unfounded, and HAIGHT, J., not sitting. that the divorce granted to the wife, Jennie P. Fosdick, is not a bar to this action to recover the money stipulated in the agreement.

(116 N. Y. 635) As we have seen, the law sanctions agree

GALUSHA V. GALUSHIA. ments in certain circumstances between hus

(Court of Appeals of New York. Dec. 10, 1889.) bands and wives for separate living, and providing the means for the support and main- HUSBAND AND WIFE-ARTICLES OF SEPARATION –

DIVORCE-ALIMONY. tenance of the wife and children through the medium of a trustee to receive and disbursecuted after separation, through the medium of a

1. A contract between husband and wife, exethe same. Such agreements take the place, trustee, whereby the husband agrees to pay to the as far as they extend, of the duties and obli- trustee, during the wife's life, a certain amount gations of the law in relation to husband and each month for her support, and the wife and wife and their children. But they do not trustee agree to save the husband harmless from supersede or render inoperative other duties any further liability for her support, is valid.

2. The obligation to make such payments is and obligations imposed by law upon hus- not annulled by a subsequent decree of divorce. band and wife towards each other and to-trustee is not a party, and in which the validity of

3. In such a suit for divorce, in which the wards their children. They are still hus- such contract is not called in question, the court band and wife, but living apart from each has no power to set the contract aside. other, and bound to observe all the other do- 4. Code Civil Proc. N. Y. $ 1759, which aumestic duties resting upon them as husband thorizes the court, in a divorce suit by a wife, to

require the husband to provide suitably for her and wife and parents, not provided for in the support, does not authorize the allowance of aliagreement of separation. Neither of them mony, where the parties have previously execan marry or commit adultery without incur-cuted a valid agreement for the support of the wife

by her husband after their separation. ring the consequences and the penalty prescribed by law to husbands and wives who

FOLLETT, C. J., dissenting. commit those offenses. Hence we find nu

Appeal from a judgment of the general merous decisions of the courts, in nearly all term of the supreme court, fifth department, civilized countries, holding that either hus- modifying a judgment of the special term, band or wife may, not withstanding the ex- granting an absolute divorce on the ground istence of such agreement between them, of adultery, so as to reduce the amount of maintain against the other the ordinary ac- alimony to $3,000 per annuin; and further tion for divorce, limited or absolute, accord- modifying the judgment by the insertion of a ing to the ground and the jurisdiction, and provision declaring the force and legal effect whether the ground therefor accrued before of a separation agreement between the paror after such agreement was entered into. ties terininated, and as thus modified affirmThe following authorities, I think, sustain ing the judgment, without costs of appeal to the proposition. Stew. Mar. & Div. § 191; either party. The plaintiff in her complaint Grant v. Budd, 30 Law T. (N. S.) 319; alleged adultery on the part of the defendant Charlesworth v. Holt, 43 Law J. Exch. 25; with three persons. Defendant, in his anWright v. Miller, 1 Sandf. Ch. 103; Carpenter v. Osborn, 102 N. Y. 559, 7 N. E. Rep.

1 Modifying 46 Hun, 675, mem. 823; Pettit v. Pettit, 107 N. Y. 677, 14 N.

2 As to the validity and enforceability of conE. Rep. 500; Jee v. Thurlow, 2 Barn. & C. tracts between husband and wife, see Freiler v. 547; Kremelberg V. Kremelberg, 52 Md. Kear, (Pa.) 17. Atl. Rep. 668, and note; Artman v. 553. With these views and authorities it Ferguson, (Mich.) 40 N. W. Rep. 907, and note; seems very clear to me that the agreement of Fuller v. Lumbert; (Me.) 5 Atl. Rep. 183, and note;

Harrell v. Harrell, (Ind.) 19 N. E. Rep. 621, and separation is valid, and has not been in any-note.

swer, denied the allegation as to two of the PARKER, J., (after stating the facts as parties named, and set up as a defense to the above.) Was it error to disregard the agreedemand for alimony a separation agreement ment between the parties to this action and dated April 30, 1883, executed by the parties the trustee, providing for the support of this to this action and one Galusha Phillips, as plaintiff during her life, and to make such an trustee. It appears that for a number of allowance as to the court seems just? is the ġears before final separation the relations question presented for our consideration. existing between husband and wife were not The trial court apparently adopted the view pleasant. At times they lived apart. The that, inasmuch as the statute empowers the evidence tended to show that a little while court to require the wrong-doing husband to before making the separation agreement the provide for the support of the wife, it may wife discovered that her husband had been permit the agreement to stand, and, in addi. inconstant to the marriage vow, and they tion thereto, compel the defendant to pay such immediately separated. The other party to other or further sum as the surrounding cirthese improper relations was an employe of cumstances suggest to be just. On the other the defendant, with whom the complaint hand, the general term proceed upon the theavers Mr. Galusha had adulterous inter- ory that the plaintiff is not entitled to her supcourse, both before and after the separation. port, under and by virtue of an agreement, After separation, negotiations for a settle-in which she and her trustee contract that the ment upon the wife of a sum of money, nec- defendant shall not be called upon to pay any essary for her support and maintenance, other sum for that purpose, and at the same were had. Such negotiations resulted in the time be permitted to receive an additional almaking and execution, through the interven- lowance for her support by virtue of a judgtion of a trustee, of a separation agreement. ment of the court, and therefore mo:lified the By its terms the husband bound himself to judgment appealed from by the insertion of a pay to the wife the sum of $5,000, to be hers provision declaring the termination of the absolutely, for the purchase of a house; the force and legal effect of the separation agreesum of $1,000 for her medical attendance; rnent. It is well, therefore, at the outset, to to give to her the furniture in the house, to- consider the validity and binding force of this gether with the horse and necessary outfit. contract which one court ignores and another He also covenanted, on the part of himself, brushes away. his heirs, executors, and personal representa- Marriage is favored in the law, and, as a tives, to pay to the wife $100, on the 1st day contract not to marry is against public policy of each month, during her natural life. On and void, so, too, is a contract between husthe part of the wife and Galusha Phillips, band and wife to be divorced, or in the haptrustee, it was agreed to accept and take said pening of a future event to live apart. But, sums in full payment and satisfaction for her while a contract to separate in the future is maintenance and support during her natural void, it is now too well settled, both in Englife. The said Galusha Phillips, trustee, land and this country, to admit of discussion, agreed that the wife should fully support and that after a separation has taken place a conmaintain herself, and that he would save the tract may be made, through the intervention husband harmless from the payment of any of a trustee, which is effective to bind the and all sums of money for or on account of husband to contribute the sums therein rothe full support änd maintenance, medical vided for the future support of the wife. 1 attendance, and any and all expenses, legal Bish.

Mar. & Div. 88 637, 650; Carson v. Muror otherwise, of Sarah F. Galusha, for and ray, 3 Paige, 483; Magee v. Magee, 67 Barb. during her natural life. It was further | 487; Pettit v. Pettit, 107 N. Y. 677, 14 N. E. agreed that, after the death of the husband, Rep. 500; Call-ins v. Long, 22 Barb. 97. The the wife should have the right to continue contract of separation is also valid, so far as the agreement, and receive the $100 per relates to the indemnity given to the husband month from the husband's estate. In which by the trustee. Such covenants are mutual event, she was to release all right of dower and dependent. Wallace v. Bassett, 41 Barb. and claims of every kind against the estate. 92; Dupre v. Rein, 7 Abb. N. C. 256. The The action resulted in a judgment against contract between these parties was made aftthe defendant dissolving the marriage be- er actual separation, and through the intertween them, because of adultery committed vention of a trustee. By its terms, the deby the defendant. The decree further fendant obligated himself to pay, for the benawarded to the plaintiff the sum of $3,750 efit of this plaintiff, certain fixed sums of yearly. No reference whatever was made in money, and in addition thereto to pay to the the decree to the agreement of separation. trustee, for her benefit, $100 monthly during On appeal the general term 30 modified the her natural life. On the part of the plaintiff judgment as to reduce the annual amount of and the trustee, it was covenanted to “accept alimony to $3,000, and also by the insertion said payments in full payment and satisfacof a. provision terminating the force and tion for the maintenance and support of said legal effect of the separation agreement. As Sarah F. Galusha during her natural life; and thus modified, the judgment was affirmed. the said Galusha Phillips, trustee, in considThe defendant appeals to this court.

eration of the several payments herein before Esek Cowen, for appellant. J. A. Stull, mentioned, does hereby agree to and with the

. for respondent.

said party of the first part that said Sarah F.

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Galusha shall fully support and maintain her-event of death, his estate should contribute a self, and provide all things of all kinds nec- like support each year, so long as she should essary for her full support and maintenance; live. By its terms the parties attempted a and that said Sarah F. Galusha will perform severance and settlement of their relations all acts and covenants which she has herein towards each other, in all respects save one, agreed to do and perform, and to save said which should last for all time. They were party of the first part harmless from the pay-powerless to dissolve the marriage tie, and, ment of all sums of money for or on account of course, did not attempt it. But they did of the full support, maintenance, medical at- make a settlement which was intended to tendance, and any and all expenses, legal or to separate them forever, as absolutely as it otherwise, of said Sarah F. Galusha, for and was in their power to do. The language of during her natural life.” In view of the sit- Chief Judge RUGER, in delivering the opinuation of the parties, the contract was, at the ion of the court in Carpenter v. Osborn, 102 time of its execution, valid and binding upon N. Y. 559, 7 N. E. Rep. 823, is applicable to all the parties thereto. The defendant has the agreement here: “There is no express or fully performed on his part, and it would seem implied condition in the contract thai the as if he were entitled to the protection which plaintiff should continue to remain the wife it was stipulated that full performance should of John Carpenter, but the obligation to pay give to him.

interest was to continue unconditionally durThe argument that, upon the granting of ing her natural life." No attempt was made the decree of divorce, there was a failure of to shorten the period of payment, should diconsideration to support the agreement is vorce or marriage thereafter result. It is without force. The consideration for an written that the death of the wife shall conagreement of separation fails, and the constitute the event which shall terminate the tract is avoided, when separation does not agreement, and the court will not attempt to take place, or where, after it has taken place, read it as if it affirmed otherwise. the parties are reconciled and cohabitation The parties to that agreement were powerresumed. Neither of these events happened. less to provide that they should not be visited The suggestion that the subsequent violation with the legal consequences of adultery. Any of the marriage vow by the defendant may be agreement to that effect would have been treated as vitiating the separation agreement void. Such was and is the law, and they are does not require extended consideration, for presumed to have known it, and to have made it is without potency. Becanse of the mar- their contract with the knowledge and underriage relation, the husband was bound to sup- standing that, in the event of the commission port his wife. This legal obligation con- of the act of adultery by either the husband stituted the basis for a settlement of their or the wife, the other party would be at affairs, and the making of an agreement by liberty either to permit the legal relation of which it should be definitely determined how husband and wife to continue, or sunder the much he should be obliged to contribute and marriage tie in an action brought for that she entitled to receive from him for her sup- purpose. No provision was inserted that this port. After its making, it was not in the contract for maintenance should be affected power of either party, acting alone and against by the subsequent wrongful act of either the will of the other, to do an act which party, and none can be implied. A succeedwould destroy or affect that contract. The ing illegal act by one of the parties, whether act of adultery did not of itself subvert the adultery or assault and battery, would render marriage contract. It enabled the wife, the offending party liable to in :ur the legal through the aid of the courts, to relieve her- penalty thereof; but it could not affect a self from the legal restraints of the marriage prior agreement for maintenance, in the abtie. But she need not have availed herself of sence of a stipulation providing for such a that privilege. She might have determined result. The views thus expressed lead to the to condone the offense. Condonation is fa- conclusion that the separation agreeinent was vored in the law. The wrongful act of the not affected by the decree granting an absohusband, then, did not of itself avoid even lute divorce. The position thus taken seems the marriage contract. Much less was it to be supported, either assertively or by potent to affect a contract founded, not acquiescence, by text-writers and decisions. upon a promise to faithfully observe the Stew. Mar. & Div. § 191; Grant v. Budd, 30 marriage vows, but, instead, upon a legal ob- Law T. (N. S.) 319; Charlesworth v. Holt, 43 ligation to support and maintain the wife. Law J. Esch. 25; Clark v. Fosdick, 13 Daly, Neither did the act of the wife, in availing 500; Wright v. Miller, 1 Sandf. Ch. 163; Carherself of the husband's wrong to free her- penter v. Osborn, 102 N. Y. 552, 7 N. E. Rep. self from matrimonial bonds, affect the sep-823; Jee v. Thurlow, 2 Barn. & C. 547; aration agreement. At the time of the exe- Kremelberg v. Kremelberg, 52 Md. 553. cution of the agreement husband and wife We have, then, a valid tripartite agreehad separated. It was fully determined that ment, and a subsequent judgment of divorce they should not live together again. In that rendered in an action wherein two of the parsituation the wife demanded, and the hus- ties to the agreement only are plaintiff and band fonceded, a separate support. The defendant. The plaintiff did not in her comagreement provided, not merely for her sup-plaint ask, as a part of the relief, that the port during their joint lives, but also that, in 'separation agreement be set aside. She did

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GENCE.

not allege that it had been obtained fraud- effect, it would enable the court to disregard ulently, or by means of duress. In no way entirely settlements of this character; for, if whatever was its validity attacked, or a the court can decree that the husband must foundation laid which would have empowered pay more than the parties have agreed upon, a court of equity to set it aside. The subse- it is difficult to see any reason why it may quent order of the general term, therefore, in not adjudge that the sum stipulated is in exdirecting such modification of the judgment cess of the wife's requirements, and decree of divorce as would terminate the force and that the husband contribute a smaller amount. legal effect of this valid separation agreement, The views expressed lead to the conclusion cannot be sustained. The authority conferred that the judgment appealed from should be upon the court by the Code, to require the de- modified by striking out the provision termifendant to provide suitably for the support nating the force and effect of the separation of the plaintiff as justice requires, (Code agreement, dated April 30, 1883. It should Civil Proc. $ 1759,] is not so broad and com- be further modified by striking out the proprehensive as to admit of a construction con- vision allowing alimony, and, as thus modiferring upon the court power to ignore all fied, the judgment should be affirmed. All existing rules as to parties, pleadings, and concur, except FOLLETT, C. J., dissenting, proof, and arbitrarily set aside a valid agree- j and BRADLEY and HAIGHT, JJ., not sitting. ment, because in the judgment of the court

(116 N. Y. 628) one of the parties agreed to accept from the other a less sum of money than she ought. WILLIAMS 0. DELAWARE, L. & W. R. Co.1

We must now consider briefly whether the Court of Appeals of New York, Second Divis. trial court should have granted an allowance

ion. Dec. 10, 1889.) in addition to the sum which the parties had MASTER AND SERVANT_CONTRIBUTORY NEGLIvoluntarily agreed was sufficient for the support of the wife, and which both the wife and road for personal injuries received by being struck

In an action by a brakeman against a railtrustee covenanted to accept in full for her by a bridge while standing on the roof of a freightsupport and maintenance during her natural car, while engaged in his work, it appeared from life. There are a number of cases where, plaintiff's evidence that the bridge was too low for notwithstanding a voluntary settlement by a he was familiar with the bridge, and was standing

him to pass under it while standing upright; that husband upon his wife, the court has made with his back to the engine, when he knew that an additional allowance, upon the ground the train was about to pass under the bridge. Held that the settlement was inadequate for her that, the plaintiff's testimony showing contribusupport. 2 Bish. Mar. & Div. $375, and cases should have been granted. Potter and VANN, JJ.,

tory negligence, defendant's motion for a nunsuit cited. But our attention has not been called dissenting. to a case in which the court has held that

Appeal from supreme court, general term, where the wife, by the intervention of a trus

fourth department. tee, makes a valid agreement that the settle

Action by Ellis R. Williams against the ment is sufficient for her support, and in

Delaware, Lackawanna & Western Railroad demnifies the husband against any further payment therefor, the court will make a fur-ant's motion for a nonsuit, and rendered

. payment therefor, the court will make a fur- Company. The circuit court denied defendther allowance while that agreement is in force. The statute authorizes the court, in judgment for plaintiff upon the verdict, and the final judgment dissolving the marriage,

the general term affirmed the judgment. De

fendant appeals. to require the defendant to provide suitably

Francis Kernan, for appellant. W. T. for the support of the plaintiff as justice le

Dunmore, for respondent. quires, having regard to the circumstances of the respective parties. It directs this to

HAIGIIT, J. This action was brought to be done because, upon the dissolution of the recover damages for a personal injury. On marriage relation, the legal obligation of the the 8th of July, 1882, the plaintiff was enhusband to support the wife ceases. But

gaged as a brakeman upon one of the defendfor the power thus conferred upon the court ant's trains, composed of freight-cars, and the result of the husband's misconduct would one passenger coach, which was at the rear be to relieve him from the duty of support- end of the train. At the time of the injury ing the wife whom he had wronged. But

he was standing on top of one of the box-cars this authority to protect the wife in her means composing the train, and, as the train passed of support was not intended to take away under the Mitchell-Street bridge, in the vilfrom her the right to make such a settlement lage of Norwich, the back of his head struck as she might deem best, for her support and against the bridge, inflicting the injury commaintenance. The law looks favorably upon plained of. There was a side or branch track, and encourages settlements made outside of parallel with the main track, passing through court, between parties to a controversy. If, under the bridge where the accident occurred, as in this case, the parties have legal capace which was entered from the main track at ity to contract, the subject of settlement is either end by means of switches. It was the lawful, and the contract, without fraud or custom of this train to run upon the side duress, is properly and voluntarily executed, track, and stop, so as to allow the passenger the court will not interfere. To hold other train to pass. The plaintiff had gone upon wise would be not only to establish a rule in violation of well-settled principles, but, in 1 Reversing 39 Hun, 430.

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the top of the train, so as to operate the passed under the bridge; that it was his place brakes and hold the train in position after it to be there. Upon the redirect examination had entered upon the branch track. He sup-be further testified that “I never knew of posed that the engineer would enter the passing under the bridge on top of a box-car, branch track at the first switch, and draw that is, to name the car or remember it. All the train up upon it, but, instead of doing I can say is that I have been on the train so, as he neared the switch he reopened the when it passed under it, going back and throttle of the engine, putting on more forth.” It is quite evident from his testi

'

. steam, so as to run through, upon the main mony that he had on numerous occasions track, to the other end of the branch, and passed under this bridge while on top of the then back in upon it. The plaintiff, seeing train; and, if so, he must have known, had the engineer do this, and divining his pur- he exercised ordinary care and observation, pose, turned to go back, towards the coach, that it was not of sufficient height to permit and was thus proceeding, with his back to a person to pass under it while standing upthe bridge, when he was struck by the on the top of a box-car of the company. In bridge, and injured. The height of the this regard, we are unable to distinguish the bridge from the top of the rail was 16 feet case from that of Gibson v. Railway Co., 63 13 inches. The height of the box-cars was N. Y. 449. In that case the plaintiff was from 11 feet 2 inches to 11 feet 6 inches. struck by the projecting roof of the depot The height of the plaintiff was 5 feet 7 in- building. He was familiar with the locality, ches. Some of the cars used upon the de- and knew of the roof. He had, however, fendant's road were lower and some higher never measured its exact height from the than those of the defendant.

platform, or its distance from the top of the The only question which we shall consider cars. His information upon the subject was in this case is as to whether or not the plain- derived from general observation. In this tiff was guilty of contributory negligence; case the bridge crossing over the railroad was and this depends upon the question as to an open, visible, permanent structure, which whether he knew, or onght to have known, the plaintiff daily observed while passing unthat this bridge was low, and that he could der it, in the employ of the defendant. True, not pass under it while standing upon the he had never measured its height from the top of the box-car. Upon this point, it ap- rails; but, having passed through, under the pears from his own testimony that he first bridge, while on top of the cars, he must have began work upon, the defendant's road, in known that it was not of sufficient height to 1880, as a fireman on one of the engines, and permit him to stand while so passing. The for six or seven months had run over this rule is that a servant who enters upon emroad passing under the bridge daily. He ployment from its nature bazardous assumes had been laid off for a time, and had again the usual risks and perils of the service, and entered the employ of the defendant as brake- of the open, visible structures known to him, man, and as such had run upon this train for or of which he must have known, had he exupwards of three weeks when the accident ercised ordinary care and observation. De occurred. His duty was that of middle Forest v. Jewett, 88 N. Y. 264; Appel v. brakeman, and he was required to be gener- Railroad Co., 111 N. Y. 550, 19 N. E. Rep. ally on top of the train, so as to hold the 93; Haas v. Railroad Co., 40 Hun, 145. It train if it was going on a down grade, or ap- does not appear that the plaintiff's attention proaching a station, and to answer signals was diverted by anything that would tend to which should be received from the engineer. relieve him from the imputation of contribUpon his direct examination he testified that utory negligence on the occasion in question; he did not know that the bridge was not of and, inasmuch as such negligence appears sufficient height to enable him to stand upon from his own testimony, the exception to the the top of a box-car, and pass under it in refusal of the defendant's motion for a nonsafety; that he did not think he had ever suit was well taken. The judgment should stood on top of box-cars and passed under be reversed, and a new trial granted; costs the bridge; that he could not have done it. to abide the event. Upon his cross-examination he conceded that he knew of the bridge, and its location; that, BRADLEY, PARKER, and BROWN, JJ., conas firernan, he passed under it daily, and cur. POTTER and VANN, JJ., dissenting. could see it, and after he became a brakeman FOLLETT, C. J., not sitting. he passed under it daily; that he understood his place as a brakeman; that when they

(118 N. Y. 1) were approaching a village it was his duty to

DE GRAAF V. WYCKOFF.1 be on top of the train, so as to apply the

( brakes, if required; that this was one of the Court of Appeals of New York, Second Divis

ion. Dec. 10, 1889.) written rules of the company; that, as they CONVERSION-HARMLESS ERROR-RES ADJUDICATA. were running south, through the village of

1. In an action for the misappropriation of Norwich, they were in sight of the bridge; bonds held by defendant as collateral, the refusal that it was in the day-time, and the bridge to allow proof that the plaintiff received the prowas in plain sight when he turned his back ceeds of such bonds is not prejudicial error, where

there is no offer to prove that the plaintiff received to it, to go to the rear of the train; that he was usually on top of the box-cars when they Afirming 41 Hun, 646, mem.

9

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