Hungerford v. Hungerford

• Decision Date: 06 February 1900
• Citation: 56 N.E. 117,161 N.Y. 550
• Parties: HUNGERFORD v. HUNGERFORD.
• Court: New York Court of Appeals Court of Appeals

161 N.Y. 550

56 N.E. 117

HUNGERFORD

v.HUNGERFORD.

Court of Appeals of New York.

Feb. 6, 1900.

Appeal from supreme court, appellate division, Fourth department.

Action by Charity Hungerford against Orrin Hungerford. From a judgment of the appellate division, Fourth department (44 N. Y. Supp. 973), affirming a judgment for plaintiff entered upon the report of a referee, defendant appeals. Affirmed.

Henry Purcell, for appellant.

Arthur L. Chapman, for respondent.

CULLEN, J.

The action was brought to set aside an agreement made between the defendant and plaintiff, who are husband and wife, by which the latter, in consideration of $1,000 and some articles of household furniture, agreed to relinquish all claims upon the defendant for support during his life, and upon his estate after his decease. Differences having arisen between the parties, a separation ensued, in contemplation of which the agreement was made. The referee found that the defendant, prior to the execution of the agreement, has maltreated the plaintiff, and inflicted physical violence upon her, to such an extent that she could have successfully maintained an action against him for separation; that, while there was no express duress or fraud practiced on the plaintiff, still the agreement was executed by her unadvisedly and improvidently, as the result of such ill treatment; and that the provisions for the plaintiff's support made by the agreement were entirely inadequate for the purpose, and were not suitable or equitable, considering the defendant's means. He further found that the plaintiff had expended all the money received by her from her husband, except the sum of $400, which was invested in a house and lot. He directed judgment that, on the transfer by the plaintiff to the defendant of the house and lot, the agreement of separation should be set aside. The appeal was taken on the judgment roll, the record not containing the evidence, and the judgment has been unanimously affirmed by the appellate division. The only question before us, therefore, is whether the findings of the referee are sufficient to support the judgment.

Two objections are taken to this recovery: First, that the referee has not found such imposition on the plaintiff as would enable her to rescind the contract; second, that she has not made restitution of what she has received under it, nor does the judgment require her to make such restitution. We may assume, for the discussion, that either of these objections would be fatal to a rescission of the agreement, were it an ordinary contract between parties competent to contract. But it must be borne in mind that a contract between husband and wife is void at law and upheld solely in equity, and then not...