Ansorge v. Armour

• Court: New York Court of Appeals
• Citation: 267 N.Y. 492,196 N.E. 546
• Parties: ANSORGE v. ARMOUR.
• Decision Date: 22 May 1935

267 N.Y. 492
196 N.E. 546

ANSORGE
v.
ARMOUR.

Court of Appeals of New York.

May 22, 1935.

Action by Martin C. Ansorge against Albert P. Armour. Judgment for plaintiff was affirmed by the Appellate Division (243 App. Div. 524, 276 N. Y. S. 1020), and defendant appeals by leave of Court of Appeals.

Reversed, and new trial granted.

[267 N.Y. 493]Appeal from Supreme Court, Appellate Division, First department.
Harold H. Levin, of New York City, for appellant.

Millard H. Ellison, of New York City, for respondent.

[267 N.Y. 494]CRANE, Chief Judge.

The defendant and Margaret Cleverley Armour were married in 1921. A daughter, Shirley, was born of the marriage in 1927. On July 2, 1931, the couple entered into a separation agreement, a formal document, which read in part as follows:

‘Agreement made July 2nd, 1931, between Albert P. Armour, of Forest Hills, New York City, hereinafter called ‘First Party;’ and Margaret C. Armour, his wife,

[196 N.E. 547]

of the same place, hereinafter called ‘Second Party.’

‘Witnesseth:

‘Whereas, the parties hereto intermarried on the 26th day of April, 1921, and are the parents of a child known as Shirley Elizabeth Armour, born on the 9th day of February, 1927; and

‘Whereas, the parties hereto are not now living together as man and wife; and

[267 N.Y. 495]‘Whereas, it is mutually desired between the parties to provide for the custody and care and education of their said child, Shirley, during her infancy; and

‘Whereas, it is also the desire of the parties to finally settle and determine the property rights between the parties hereto and for a reasonable provision for the support and maintenance of the second party, past, present and for the future, as hereinafter provided;

‘Now, Therefore, in consideration of the premises and other valuable consideration, it is hereby mutually agreed as follows: * * *

‘Third. It is hereby mutually covenanted and agreed that the independent custody, control and education of the said daughter, Shirley, of the parties hereto, shall be and is hereby given to the party of the first part, who shall be responsible and liable for the adequate support, maintenance and education of said child consistent with the financial means, environment and mode of living of the said first party which is now mutually admitted by the parties hereto to be an atmosphere of recognized wealth and with cultural surroundings. It is further mutually agreed, however, that the party of the second part may have the custody of the said child, Shirley, during such weekends after school sessions from Friday until Sunday evening in each week from time to time as may be arranged between the parties hereto, both parties at all times, however, agreeing that any temporary environal change in the said child's custody shall first be considered not solely from the wishes of the parties hereto, but for the benefit of the said child, as regards her health, temperament, character and general welfare. The parties further agree that there shall be no excuse, failure, refusal or neglect to so deliver the custody of the said child or return her from one party to the other in accordance with the terms of this agreement, except sickness of such child, which shall be certified to in detail by [267 N.Y. 496]the attending physician upon request of either party; and each party shall have the right to visit the said child while in the custody of the other at any time while said child is confined to bed because of illness; and each party shall have the right after consultation with the other, looking towards the best interests of said child, to have the child examined by a physician of such party's own selection; provided, however, if the second party shall retain a physician to examine from time to time said child during such illness and another physician has been retained by the first party and is attending said child, then and in that event, the second party shall pay for the services of said physician so hired by her and any medicine or therapeutic agencies purchased or supplied for said child on the recommendation of such physician, when requested by the first party. Each party shall at the time of the execution of this agreement, give to the other party in writing the address of their place of residence and shall cause prompt notice in writing to be personally delivered or sent by registered mail to the other party of any change in residence, giving the address of such new place of residence. When the said child is taken from the said usual place of residence of the second party by the second party for the week-end periods designated herein, or for any other longer periods which may be hereafter mutually consented to by the parties hereto, the said child shall not be absent therefrom for more than three consecutive days without notice being given to the first party, nor shall the first party allow said child while in his custody to be away from his place of residence as stated herein, unless at boarding school, for more than four days without giving notice to the second party of the whereabouts of said child. In no event shall said child be removed by either party from the State of New York, unless on a yachting trip in a vessel owned by the first party, on which he shall be present, without the [267 N.Y. 497]consent of the other party, for a period of more than forty-eight hours.

‘Fourth. The first party agrees that he will at all times suitably provide for the adequate support and make ample and adequate

[196 N.E. 548]

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