Rodgers v. Rodgers

• Decision Date: 11 June 1920
• Citation: 229 N.Y. 255,128 N.E. 117
• Parties: RODGERS v. RODGERS et al.
• Court: New York Court of Appeals Court of Appeals

229 N.Y. 255

128 N.E. 117

RODGERS

v.RODGERS et al.

Court of Appeals of New York.

June 11, 1920.

Action by Helen M. Rodgers against John C. Rodgers. From a judgment of the Appellate Division, First Department (188 App. Div. 965,176 N. Y. Supp. 919) affirming a final judgment of special term, which sustained defendant's demurrer to the complaint and dismissed the complaint, plaintiff appealed. John C. Rodgers dying after the decision of the Appellate Division, William J. Rodgers and Martha M. Rodgers, his executors, were substituted as parties defendant.

Judgments reversed, and demurrer overruled, with leave to defendants to answer.

See, also, 186 App. Div. 77,174 N. Y. Supp. 24; 178 N. Y. Supp. 915.

Appeal from Supreme Court, Appellate Division, First department.

Joseph F. Murray, of New York City, for appellant.

Thomas F. Conway, of New York City, for respondents.

POUND, J.

This action was begun against John C. Rodgers, who died after the decision of the Appellate Division was made, and has been continued against the executors of his will.

The question is whether the complaint states facts sufficient to constitute a cause of action and whether there is a defect of parties defendant. The material allegations are that plaintiff was the wife of James M. Rodgers; that she had brought an action against him in the state of New York for an absolute divorce, which was pending on April 7, 1909; that she discontinued her action and resumed her relations with her husband in consideration of the agreement of her husband and John C. Rodgers, his father, entered into with her on that date, providing, among other things, that--

‘The party of the second part [plaintiff], so long as she shall live and shall either live with the party of the first part [her husband] or separate from him and irrespective of whether she shall bring an action against him for a separation or for an absolute divorce, shall be paid on the first of each and every month the sum of three hundred dollars, dating from April 1, 1909; and it is understood and agreed that such payments shall not be affected by the death of either of the parties of the first part or third part [defendant], but shall continue so long as the party of the second part shall live.’

She further alleges that she fully performed all the conditions of such agreement on her part, and continued to live with her husband as his wife until his death on February 6, 1917; that defendant has failed to pay the moneys provided to be paid her by him since the 7th day of April, 1909, excepting $1,900 thereof, and that there is now due and owing from him the sum of $29,600, with interest, ‘no part of which has been paid.’

[1][2] We think that the complaint is sufficient. The agreement set forth therein is not on its face against public policy. It is for the resumption of marital relations between husband and wife separated for cause. In the absence of proof, it may not be presumed that the wife's grievance was unsubstantial. It rests on a valuable consideration. The wife condoned the alleged adultery of the husband. That was a detriment to her. She surrendered a right. The husband got rid both of the action and the cause of action for divorce. He might have been successful in his defense, but it was a substantial benefit to him to have the case ended and his wife again under his roof. The performanceof marital duty should not be made the subject of bargain and sale, but it does not appear that reconcilement was plaintiff's duty in this case. Rather it was her right to refuse to condone an offense against the marriage relation and to insist on a divorce, with separate support and maintenance. The husband was not hiring a discontented wife, separated from him without good...