Pettit v. Pettit

• Decision Date: 20 December 1887
• Citation: 107 N.Y. 677,14 N.E. 500
• Parties: PETTIT v. PETTIT.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 677

14 N.E. 500

PETTIT

v.PETTIT.¹

Court of Appeals of New York.

December 20, 1887.

Appeal from general term, supreme court, First department.

This was an action by Susan Pettit against Asa Pettit, her husband, to enforce a settlement agreed upon pending a suit for divorce. The defendant refused to make the settlement until he was indemnified against any past or future liability for the plaintiff's support. Trial was had before a justice of the supreme court, without a jury, and judgment was entered for the plaintiff. The defendant appealed to the general term of the supreme court, where the judgment was affirmed, and he now appeals to this court.

Josiah T. Marean, for appellant.

G. S. Carpenter, for respondent.

FINCH, J.

The plaintiff and defendant are husband and wife, and at the ripe ages of 80 and 73, and after a married life of almost half a century, have quarreled and separated. The wife brought an action for a limited divorce, upon the ground of cruel and inhuman treatment. Pending the trial a settlement was agreed upon, to enforce which the present action is brought. The substance of that agreement was that the property, real and personal, of the husband should be sold and converted into money, and after paying his debts, to an amount not exceeding $600, one-third of the balance remaining should be paid over to the wife, and the parties should live separate. The property was advertised for sale as agreed; but before the sale, the defendant, through his counsel, demanded the execution by the plaintiff of an agreement, to be executed also by two of the sons, expressly indemnifying the defendant against any liability for the support of the wife already incurred or that might thereafter accrue. His written contract gave him no such right, and failed to justify any such demand. The wife refused to sign unless the sons did, and they peremptorily declined. The husband indicated a purpose not to carry out his agreement unless the proposed indemnity was executed. In this condition of affairs, the sale took place, and the land was purchased by one Schreiber for $5,160, and the sale of the personal property brought the net proceeds up to $5,701, and no more. A contract of sale by husband and wife was executed by them to Schreiber, but when the day for delivering the deed came around, the wife refused to sign except upon receiving her share of the money on the spot. To this she was not entitled, but her unfounded demand grew out of and was occasioned by the husband's unfounded demand of an indemity. Schreiber brought a suit to compel a delivery of his deed. Pending that, the new differences were settled by a supplemental agreement that the wife should sign the deed, and the husband deposit $1,400 to abide the event of the present action, which was expected to be commenced. The costs in the Schreiber suit seem to have been satisfactorily arranged by an agreement with the wife's attorney to pay them out of any costs recovered by the wife in this action. The deed was accordingly signed and the money deposited. The complaint in the present action sets out the original written agreement, alleges full...