waived, it is gone forever; and this rule simply expresses what must have been the meaning of the parties at the time the agreement was made. It was clearly intended to convert the conditional right of the creditor to sue on the performance of the condition into an absolute liability, which could be enforced after the termination of the receivership, irrespective of the six months' limitation. Otherwise they accomplished nothing. After October 16, 1901, the condition precedent could never by any possibility be performed.

It is true that the identical language used with reference to the threeyear statute of limitations and to the saving clause is here interpreted as having different meanings. Whatever the parties may have intended, the courts have said that, in view of public policy, such an agreement, if valid at all as a contract, shall with regard to the former be held to import a certain thing. But such a result is not inconsistent with giving the ordinary meaning to the same terms, when such considerations do not apply.

In my opinion, therefore, the objection of the defendant Bagley is not well taken, and the plaintiff is entitled to the relief demanded in the complaint, with costs..

Judgment accordingly.

VAN GAASBEEK v. UNITED STATES LACE CURTAIN MILLS. (Supreme Court, Appellate Division, Third Department. May 5, 1909.) PHYSICIANS AND SURGEONS (§ 24*)-CONTRACT OF EMPLOYMENT EVIDENCE.

Evidence in an action by a physician to recover of a master for his services in treating an injured employé held not to show a contract to pay for services after the employé was taken home from a sanitarium. [Ed. Note. For other cases, see Physicians and Surgeons, Dec. Dig. § 24.*]

Appeal from Trial Term, Ulster County.

Action by George H. Van Gaasbeek against the United States Lace Curtain Mills. Judgment for plaintiff, and defendant appeals. Reversed.

Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.

A. T. Clearwater, for appellant.

James H. McKittrick, for respondent.

SEWELL, J. This action was brought to recover compensation for services rendered by the plaintiff as a physician and surgeon in attending Dennis Murphy, a former employé of the defendant. There was no dispute about the rendition of the services or their value. The only question litigated was whether the defendant was liable to pay for the services rendered after Murphy was removed from the sanitarium to his home. It appeared that Murphy was injured while in the employ of the defendant, and that one of its officers or servants telephoned for physicians; that the plaintiff went to the defendant's factory and took

the patient to the Benedictine Sanitarium, one of the charitable institutions of the city of Kingston, where he remained 11 days; that he was then taken home, and was there treated by the plaintiff for 14 weeks.

The plaintiff testified that he appeared in answer to the call; that Mr. Stiner, the defendant's vice president

"had nothing to say as to the treatment; only simply advised taking the young man to the sanitarium, where, perhaps, he could be cared for much more closely than at home. * I can't repeat the language that was

used, but the advice was to take the young man, Murphy, to the sanitarium, and he to be looked after and cared for."

Murphy testified:

"The only conversation that I heard take place between Dr. Van Gaasbeek and Mr. Stiner was to have me taken to the hospital, the Benedictine Sanitarium, and have all the treatment and be taken care of. It was Mr. Stiner who directed the doctor to take me to the hospital."

On cross-examination he stated:

"Mr. Stiner said to have me taken to the Benedictine Sanitarium and I would have all care taken of me there."

The plaintiff then called Murphy's mother as a witness, who testified that Mr. Stiner came to the house the morning of the accident

"and he says, 'I have sent for the doctor, and had him taken to the sanitarium; that I think he will be properly cared for there.' That is what he said."

The evidence on the part of the defendant was that the plaintiff suggested taking Murphy to the hospital or sanitarium, and Mr. Stiner merely advised him to go to the hospital. Beyond this testimony there was no evidence tending to show an agreement, expressed or implied, on the part of the defendant. It was conceded that the value of the services rendered by the plaintiff at the factory and in taking the patient to the hospital did not exceed $10, and a tender of that sum was alleged in the answer. At the close of the evidence the defendant's counsel asked the court to direct a verdict for $10. The court refused, and the jury rendered a verdict for $450.

We think the verdict is so clearly against the evidence as to justify the conclusion that the jury mistook the import of the evidence or were influenced by passion or prejudice in rendering it. The fact that Stiner advised taking Murphy to the sanitarium, or that he directed the plaintiff to take him there for treatment, did not raise an implied promise to pay the plaintiff for his services.

"It is true," said Judge Folger, in Crane v. Baudouine, 55 N. Y. 260, "that a person may not avail himself of the benefit of services done for him without coming into an obligation to reward them with a reasonable recompense. But he cannot be said, in the meaning of the law, to avail himself of services as so done when they are not for his individual benefit, nor for that of any one for whom he is bound to furnish them. It has been held that a special

request by a father to a physician to attend upon his son, then of full age, but lying sick at the father's house, raised no implied promise on the part of the father to pay for the services rendered. Boyd v. Sappington, 4 Watts (Pa.) 247. And so in Veitch v. Russell, 3 Ad. & Ell. (N. S.) 927, it is said: 'A physician attends in every case on request. That fact alone is not suthicient for the inference of a special contract.'"

The principle upon which a person may recover of the parent for necessaries furnished his infant child is that the person who has supplied such necessaries is deemed to have conferred a benefit upon the delinquent parent, for which the law raises an implied promise on his part to pay. In the case at bar it is not pretended that the services of the plaintiff were for the benefit of the defendant, or for one for whom it was bound to provide. It follows that the liability for the services was presumptively and primarily upon the patient or his parents, and that it could not attach to the defendant, in the absence of an express agreement on its part to pay therefor.

The result is the same if we assume that the advice or direction to take the patient to the sanitarium was an employment of the plaintiff for that particular service, and was sufficient to sustain an implication of a promise to pay. The language used fairly implies that the plaintiff was merely to take the patient to the sanitarium. There is no suggestion, much less proof, of anything said or done which would give rise to an obligation on the part of the defendant to pay for any other service.

We are therefore of the opinion that the judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

(62 Misc. Rep. 354.)

WILLIAMS v. IGEL.

(City Court of New York, Trial Term. February, 1909.)

1. BREACH OF MARRIAGE PROMISE (§ 7*) PROMISE BY PERSON ALREADY MAR

RIED.

A promise of marriage, to be carried out if the woman, who has a husband living, procures a divorce, is void.

[Ed. Note. For other cases, see Breach of Marriage Promise, Cent. Dig. 5; Dec. Dig. § 7.*]

2. BREACH OF MARRIAGE PROMISE (§ 13*)-DEFENSES-INVALIDITY OF DIVORCE OF PLAINTIFF.

Where plaintiff sues for breach of promise to marry, defendant may question the validity of the divorce obtained by plaintiff in another state, without personal service, and without appearance of defendant in such action.

[Ed. Note. For other cases, see Breach of Marriage Promise, Cent. Dig. 5; Dec. Dig. § 13.*]

Action by Emily Williams against Herman Igel. Judgment for defendant.

David Finn, for plaintiff.

Bartley J. Wright, for defendant.

GREEN, J. This is an action brought to recover damages for breach of contract of marriage. The case was submitted to the jury under section 1185 of the Code of Civil Procedure, subject to the opinion of the court. Two questions were submitted to the jury: First, did the defendant promise to marry the plaintiff after a certain decree of divorce was obtained by her against her husband in the state of Rhode

Island? and, second, what damage the plaintiff sustained, if the jury find the promise of marriage was made? The jury answered "Yes" to the first question, and assessed the damages at the sum of $1,250.

The plaintiff, at the time the original promise of marriage was made, was a married woman separated from her husband for 11 years, and the evidence showed that plaintiff and defendant agreed that if she, the plaintiff, would proceed to the state of Rhode Island and obtain a divorce from her husband, he, the defendant in this action, would marry her after the decree was obtained. The plaintiff obtained the decree of divorce from her husband, who, at the time of the commencement of the action in Rhode Island, resided in St. Louis, Mo., and he was never served with process in the state of Rhode Island, nor did he ever appear in the action brought in Rhode Island, either by attorney or personally, and a copy of the summons was served upon him in the action brought in Rhode Island without the state of Rhode Island, and was served in the city of St. Louis, Mo.

It requires no citation of authorities to sustain the proposition that the original mutual promise of marriage, made while the plaintiff's husband was living, and the agreement then made that, if the plaintiff would procure a divorce from her husband, the defendant would marry the plaintiff, was void as against public policy. However, after the decree in Rhode Island was obtained by the plaintiff against her husband, she returned to the city of New York. The plaintiff claims, and the jury found as a fact, that mutual and reciprocal promises of marriage were again made; but the defendant refused to marry the plaintiff. The plaintiff now contends that the second promise, made after she procured her Rhode Island divorce, is a valid, binding contract on the part of the defendant; but the defendant insists that the decree of divorce granted by the courts of the state of Rhode Island was invalid, by reason of the fact that the courts of Rhode Island never gained or obtained jurisdiction of the defendant in that action, and for that reason the divorce is void, and that plaintiff at the time in question, after the decree was granted, and when the second promise of marriage was made, was not in a position to marry the defendant, being still the wife of the man from whom the decree was obtained, and that consequently she cannot maintain this action. I am of the opinion, and it is now the well-settled law of this state, that a divorce obtained in another state without personal service upon the defendant in that state and after his nonappearance personally or by attorney in the said action, is wholly void. Haddock v. Haddock, 201 U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867; Lynde v. Lynde, 162 N. Y. 405, 56 N. E. 979, 48 L. R. A. 679, 76 Am. St. Rep. 332; Atherton v. Atherton, 155 N. Y. 129, 49 N. E. 933, 40 L. R. A. 291, 63 Am. St. Rep. 650.

The plaintiff contends, however, that the right to question the validity of the decree is reserved to the party to the action alone, and to no one else; but with this contention I cannot agree. While it is true that the rule is that no one may question the validity or constitutionality of a statute, except a person affected by the provisions. of the statute, in the case at bar I am of the opinion that where plaintiff seeks to enforce a right of contract, or rather seeks damages for

a breach of contract, the court has the right to examine the record to ascertain whether plaintiff had the right to make the contract, and particularly where a question of public policy or public morals is involved. If plaintiff was in no position to carry out her contract, and the contract or promise of marriage is based upon mutual promise or agreement to marry, how can she obtain or recover damages for a breach of contract that she was legally unable to perform? The plaintiff, at the time of the promise of marriage made after the decree was obtained in Rhode Island, was still in the eye of the law, and the law of this state, the wife of another, and she had no legal right to marry, or to enter into a contract of marriage, and for this reason I am of the opinion that she is not entitled to recover.

Pursuant, therefore, to section 1185 of the Code of Civil Procedure, upon and under which section of the Code the case was submitted to the jury, subject to the opinion of the court, I do hereby set aside the verdict and direct judgment to be entered for the defendant. Plaintiff may have an exception to the ruling of the court, to be taken as provided by section 994 of the Code of Civil Procedure. Ten days' stay and 30 days to make a case. Judgment accordingly.

SILVERMAN v. GARIBALDI.

(City Court of New York, Trial Term. February, 1909.)

MASTER AND SERVANT (§ 330*) — INJURIES TO THIRD PERSONS - BURDEN OF PROOF.

In an action for injuries from being run down by a cab owned by defendant, where defendant admits the ownership of the cab, but contends that the driver was not his servant, or in his employ, but that he hired the cab from defendant, the burden of proof is on plaintiff to show the relationship between defendant and the driver.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 1270; Dec. Dig. § 330.*]

Action by Samuel Silverman against Luigi Garibaldi. Verdict for plaintiff, and defendant filed a motion to set aside the verdict and for a new trial. Motion denied.

Gustavus A. Rogers, for plaintiff.
Campora & Thiery, for defendant.

FINELITE, J. Motion to set aside verdict of a jury found in favor of the plaintiff and for a new trial, upon the ground that the ver dict is contrary to the evidence adduced. This action was brought to recover damages for a personal injury alleged to have been occasioned through the negligence of the defendant. On the 22d day of April, 1905, the plaintiff, whilst crossing Warren street, at the corner of Washington street, this borough, and going in a southerly direction, received the injuries complained of by being run down by a hansom cab owned by the defendant and driven by an employé of defendant. The defendant admits the ownership of the vehicle, but con