Galusha v. Galusha

• Decision Date: 05 May 1893
• Citation: 138 N.Y. 272,33 N.E. 1062
• Parties: GALUSHA v. GALUSHA.
• Court: New York Court of Appeals Court of Appeals

138 N.Y. 272

33 N.E. 1062

GALUSHA

v.GALUSHA.

Court of Appeals of New York.

May 5, 1893.

Appeal from supreme court, general term, fifth department.

Action by Sarah F. Galusha against Norman H. Galusha, impleaded, to set aside a deed of separation, and for other relief. From a judgment of the general term (19 N. Y. Supp. 1008) affirming a judgment in favor of defendant, plaintiff appeals. Reversed.

J. A. Stull, for appellant.

Esek Cowen and John P. Bowman, for respondent.

MAYNARD, J.

The defendant, Norman H. Galusha, has demurred to the complaint upon the ground that it does not contain sufficient facts to constitute a cause of action. It therefore becomes necessary to state the material facts alleged, according to their legal import, as we understand them, and in the light of the rules which must be applied in the construction of pleadings. The plaintiff and the demurring defendant intermarried in 1858, and lived together until 1883, when a separation occurred, and an agreement under seal was executed between them and the defendant Galusha Phillips, as trustee, in which it was recited that on account of existing differences the husband and wife had mutually agreed to live separate and apart from each other, and by the terms of which the husband agreed to give the wife $5,000 for the purchase of a house and lot, $1,000 to defray the expenses of medical attendance, some articles of personal property, and $1,200 annually, payable in monthly installments. The wife agreed, in consideration of the payments to be made, to accept them in full satisfaction for her maintenance during her husband's life, and, if he first died, she might elect to continue the agreement and receive the monthly payments during her life out of his estate, upon releasing her dower and all claims against his estate, and, if she elected to take dower, the $5,000 paid should be applied thereon. The trustee covenanted with the husband that the wife should support and maintain herself and perform the agreement on her part, and at all times, when so requested, sign and acknowledge all deeds and mortgages which the husband might require for the purpose of conveying any real estate which he might wish to sell or mortgage, and to save the husband harmless from the payment of any and all sums of money for and on account of the support, maintenance, medical attendance, and other expenses, legal or otherwise, of the wife. It was also agreed between the wife and the trustee that be should have a lien on the $5,000 when paid or invested, to protect him against his liability under the agreement. The husband and wife also mutually covenanted that they would at all times permit each to live separate and apart from the other, and would not sue any person for receiving or harboring either of them, and that neither should in any way molest, sue, or interfere with the other.

It sufficiently appears from the complaint that the execution of this agreement by the wife was procured by coercion and duress on the part of the husband. We need not state the averments in detail. It is enough to say of them that, if established by the proof at the trial, they would support a finding that the agreement was not her free and voluntary act, but was entered into through fear of her husband, and to purchase immunity from cruel and inhuman treatment at his hands, with which she was threatened, or to which she was subjected by him in order to compel her to consent to a separation. The husband was then worth $150,000. The wife at that time suspected that he was guilty of adultery, but the proofs were not obtainable. In 1885 the plaintiff brought an action for absolute divorce on the ground of the alleged adultery of her husband, and inserted in the complaint the usual allegations entitling her to alimony. The defendant did not deny the adultery, but pleaded the separation agreement as a bar to the action, and also averred that the property transferred by him to the plaintiff, under the agreement, with the allowances secured to her thereby, were adequate and sufficient for her support and maintenance according to her station and condition in life. The case was tried before the court without a jury, and, upon the decision of the trial judge, judgment was entered dissolving the marriage, and directing the defendant to pay annually the sum of $3,750, permanent alimony, in quarterly payments; and the judgment contained the following provision: ‘It is further adjudged that either party may apply to the court, from time to time, to modify this judgment as to alimony, in case of a change of circumstances of the parties, or for other good reasons.’ The execution of the deed of separation was not found by the trial judge, but it was introduced in evidence by the defendant, and the judge held upon the trial that it did not bar the action, or conclude the court from grantinga proper amount for alimony beyond the amount provided in the deed, and refused to hear evidence as to the treatment of plaintiff by defendant leading to its execution. It is also alleged that, because of this holding of the court, the plaintiff did not give testimony to prove the coercion and duress under which the agreement was executed. Upon appeal to the general term the judgment in the divorce suit was modified by reducing the amount allowed for alimony to $3,000, and the quarterly payments accordingly, and by inserting a clause providing ‘that the force and legal effect of the agreement of separation, dated April 30, 1883, executed by the parties and one Galusha Phillips be, and the same is hereby, terminated,’ and affirming the judgment as thus modified in all respects. An appeal was then taken to this court, where, according to the remittitur sent down, the judgment of the general term was modified by striking out the provision allowing alimony and the clause terminating the deed of separation, and, as thus modified, the judgment was affirmed. When judgment was entered upon the remittitur, a clause was inserted striking out of the original judgment the provision declaring that either party might apply to reduce or increase the alimony,-a provision which is not found in the original judgment in these words, and, if it is assumed to have reference to the clause authorizing either party to apply to the court from time to time to modify the judgment as to alimony in case of a change of circumstances of the parties, or for other good reason, it does not appear to have been authorized by the remittitur. The complaint prays that the judgment in the divorce suit may be opened, that the separation deed be adjudged invalid, and that the judgment be modified by allowing plaintiff alimony at the rate of $3,000 per year from the date of entry of judgment, after deducting amounts actually paid; and concludes with a general prayer for relief. The special and general terms have sustained the demurrer, and the plaintiff has brought this appeal.

The principal ground upon which the respondent relies to sustain the decision below is the estoppel of the former adjudication. It is insisted that it appears from the complaint, and the accompanying papers, that every material fact which the plaintiff now seeks to establish might have been litigated in the divorce suit, and that all the relief she now demands might have been sought and obtained in that action. We cannot assent to this view of the scope of the complaint, and of the effect of the prior judgment. The burden of the present cause of action is the cancellation of the deed of separation by the production of evidence dehors the instrument establishing its invalidity. An issue involving that question was not raised by the pleadings in the former action; it could not have been appropriately...