Clark v. Fosdick

• Decision Date: 10 December 1889
• Citation: 118 N.Y. 7,22 N.E. 1111
• Parties: CLARK v. FOSDICK et al.
• Court: New York Court of Appeals Court of Appeals

118 N.Y. 7

22 N.E. 1111

CLARK

v.FOSDICK et al.¹

Court of Appeals of New York,

Second Division.

Dec. 10, 1889.

This is an appeal from the judgment of the court of common pleas of the city of New York, affirming a judgment of the city court of New York, brought into this court by permission.

Jennie P. Fosdick intermarried with the defendant C. Baldwin Fosdick on the 11th day of April, 1878, and they thereafter lived together as husband and wife until the 14th of February, 1883. Then, unhappy differences having arisen between them, it was agreed between them that they should live separately, and, to effectuate that agreement, articles of separation were entered into bearing date the 14th of February, 1883, reciting that such differences had arisen between them, and that for that reason they agreed to live separately, and immediately upon the execution of said agreement separated in fact, and continued to live separately thereafter. The articles of separation provided that C. Baldwin Fosdick, the husband, and Charles B., the husband's father, covenanted that they would pay to the plaintiff, Bainbridge S. Clark, for the support and maintenance of Jennie P. Fosdick, the wife, and their two children, $2,500 per annum, payable quarterly, during the period of her natural life, unless she should remarry, in which case the allowance was to cease; and that, in case of the death of both of their two children, the allowance should be reduced to $2,000. The agreement contained the further provision that the trustee, Bainbridge S. Clark, should indemnify the husband against the support of his wife and the children; that he would pay the same over to her for her support and that of the children. The articles further provided that the husband, C. Baldwin Fosdick, should not interfere with his wife, and that she should have the custody, management, and control and education of the children; but that the husband, and Charles P. Fosdick, his father, and his wife, were to have access to the children at all reasonable times and places. After the execution of the agreement and the separation of the parties, in pursuance of the provisions in the same, and the payment of the allowance made a number of times, the wife went to reside in the state of Rhode Island, and, after residing there for the period of one year, commenced an action for divorce against her husband, C. Baldwin Fosdick. He appeared in the action, and litigated the same to a decree, which decree adjudged that ‘the prayer of the said petitioner be, and the same is hereby, granted; that the bonds of matrimony existing between the said Jennie P. Fosdick and said C. Baldwin Fosdick be, and the same are hereby, dissolved, and the said Jennie P. Fosdick have the exclusive custody of the two children, Clark Fosdick and Pauline Fosdick, until the further order of the court.’ This decree, or so much of it as above recited, together with the agreement thereto annexed, formed part of the complaint in this action. This action was brought to recover an installment of said allowance due on the 1st day of December, 1885. The purpose of the pleader in setting out the decree obtained in the courts of the state of Rhode Island was to present the whole matter by means of a demurrer on the part of the defendant, and thus make a final disposition of all the questions in the case. The defendant demurred to the complaint, assigning, as grounds of demurrer- First, that the plaintiff has not the legal capacity to sue, for that the trust has ceased, and the plaintiff has no longer any interest, the only party in interest at the time of the commencement of the action being Jennie P. Fosdick; second, that said complaint does not state facts sufficient to constitute a cause of action; third, that there is a defect of parties plaintiffs, in that Jennie P. Fosdick is not named therein as a party plaintiff.

FOLLETT, C. J., dissenting.

For dissenting opinion, see 23 N.E. 136.

Geo. W. Lyon, (H. M. Whitehead, of counsel,) for appellants.

Horace Russell, for respondent.

POTTER, J., ( after stating the facts as above.)

The questions to be decided upon this appeal are presented by demurrer to the complaint. The complaint alleges the facts which ordinarily give an action to recover the money promised to be paid the plaintiff as trustee, under the agreement; but it also alleges a decree of divorcement abtained by the wife after the making of the agreement of separation, and which, the defendant contends, defeats the plaintiff's action. The purpose of thus pleading was to obtain a final judgment upon the rights of these parties in a more speedy and less expensive way. It will be more orderly to consider, first, the ground of demurrer strictly applicable to the right of the plaintiff as trustee to bring the action.

By the express terms of the agreement of separation, the defendant C. Baldwin Fosdick agrees to pay to the plaintiff, for and towards the support and maintenance of his wife, the said Jennie P. Fosdick, and their children, the yearly sum of $2,500, for and during the period of her natural life, unless she remarries, etc., and the plaintiff and said Jennie agree that said sum so paid shall be in full satisfaction of the support and maintenance of said Jennie P. Fosdick and children, and all alimony whatsoever. This clearly constitutes the plaintiff the trustee of an express trust, and requires that an action to enforce or to execute the trust should be brought in his name. Code Civil Proc. § 449; Calkins v. Long, 22 Barb. 97;Greenfield v. Insurance Co., 47 N. Y. 430;Slocum v. Barry, 38 N. Y. 46;Hughes v. Insurance Co., 44 How. Pr. 351.

The next question to be considered is the validity of the agreement itself. I think it is to be assumed, in the consideration of this appeal, that, at the time of executing the instrument which forms the basis of this action, the defendant C. Baldwin Fosdick and Jennie P. Fosdick were husband and wife, and were living together as such. The first inquiry should be to learn whether the courts of this state have decisively passed upon that question, and, if so, to follow such holding. It was reluctantly held by the chancellor in Carson v. Murray, 3 Paige, 500, and then only upon the principle of stare decisis, as evinced by Baker v. Barney, 8 Johns. 57;Shelthar v. Gregory, 2 Wend. 422,-following the English decisions prior to the Revolution,-that ‘a valid agreement for an immediate separation between husband and wife, and for a separate allowance of her support, may be made through the medium of a trustee.’ The case of Carson v. Murray, 3 Paige, 483, was upon a bill in equity by the wife against the executors of her husband, based upon an agreement of separation, for its enforcement out of the estate of the deceased husband. The case of Baker v. Barney, 8 Johns. 57, was an action to recover of the husband the price of suitable goods sold to the wife after the separation of husband and wife under an agreement making provision for the support of the wife. And the case of Shelthar v. Gregory, 2 Wend. 422, was an action upon the bond and agreement to separate, and the defense was that, after the bond was given and before the installment or sum fell due by the terms of the agreement, the wife returned to and was living with the husband, and was supported by him. In these cases the husband and wife were living together when the agreement or articles of separation were executed, and separated immediately thereafter. The ruling of the court was to the effect that such articles of separation, considered under these various aspects, were valid. These holdings were based upon decisions made in the English courts, and I am not aware that the English or our own courts have departed or receded from the principle thus laid down. While the husband and wife in Calkins v. Long, 22 Barb. 98, had actually separated before the agreement of separation was executed, the court, in holding that the agreement was...