Rosseau v. Rouss

• Decision Date: 30 December 1904
• Citation: 180 N.Y. 116,72 N.E. 916
• Parties: ROSSEAU v. ROUSS.
• Court: New York Court of Appeals Court of Appeals

180 N.Y. 116

72 N.E. 916

ROSSEAU

v.ROUSS.

Court of Appeals of New York.

Dec. 30, 1904.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Charles Rosseau, by J. Arthur Fischer, his guardian ad litem, against Peter W. Rouss, executor of Charles Broadway Rouss. From a judgment of the Appellate Division (86 N. Y. Supp. 497) affirming a judgment for plaintiff, defendant appeals. Reversed.

Gray, Bartlett, and Martin, JJ., dissenting.Austen G. Fox, W. J. Townsend, and John J. Rooney, for appellant.

Charles A. Decker and James J. Allen, for respondent.

VANN, J.

Mainly upon the testimony of his mother, the plaintiff, a lad not yet in his teens, has recovered more than $100,000 from the estate of his putative father by the judgment now before us for review. The recovery was founded upon an alleged oral agreement made between the father and mother on the 8th of June, 1901, whereby, as it is alleged in the complaint, in consideration of her promise ‘to care for and provide for the support and maintenance’ of the son until the 4th of June, 1902, the father ‘promised and agreed to pay to and settle upon the’ son ‘the sum of one hundred thousand dollars on the’ day last named for his ‘benefit, support, and maintenance.’ The story of Mrs. Eva Rosseau, the mother, as told by her at the trial, is in substane as follows: Her real name is Eva Figgett, but she assumed the name of Rosseau on the 29th of September, 1891, for some purpose that she did not disclose. Meretricious relations sprang up between herself and Mr. Rouss, the decedent, in December, 1890, and continued until May, 1901. The plaintiff was born on the 5th of June, 1892, and the decedent in many ways and on various occasions acknowledged that he was his father. Commencing in 1896, he made an allowance of $70 a week for the support of the mother and child, and this continued until he died, on March 3, 1902. He was engaged in the mercantile business in the city New York, and, while it does not appear how much he was worth, he repeatedly stated that he was a millionaire. He was deeply attached to the plaintiff, and openly associated with him, and to some extent with his mother, although until 1898 he had a wife, and was living with her in the same city where he kept Mrs. Rosseau as his mistress. He had legitimate children, but whether more than two-a son and a daughter of full age, who were mentioned in the evidence-did not appear. In the spring of 1901 there was a quarrel between the father and mother about another woman, and she told him that she intended to leave the city, and take the plaintiff with her, in order to rear the child amidst better surroundings. He strenuously objected, and said that she might go, but he did not want her to take the boy with her; that, while he preferred she should not go, if she did, he wanted the boy t remain in the city. He then continued, according to the statement of Mrs. Rosseau: ‘Remember, that if you do so, I will settle upon Charley, when he is ten, the sum of $100,000. It is nothing. I am a rich man, my children will have plenty. Plenty. I don't mind that little amount of money. I will give it to Charley for his support, but he must be reared as my son. He must have the best that the money that I now give provides. I want him to have the best raising. I want him to be raised a Christian gentleman.’ She said: ‘I don't want to stay here. I am tired of it. I am tried; but if it is best for my boy, and if you will give him $100,000, as you say, I submi to your view; but I don't want to, yet I will, for his sake.’ Shortly afterward, as he handed Mrs. Rosseau $200 to enable her and the boy to visit the exposition at Buffalo, he said: ‘I won't give you any more money than this. Remember my contract-that you bring the boy back. Let me have the pleasure of his society. My life is a hard one-said. I am an old man. I am lonely. I am blind. The music of his voice is the sweetest I hear. I want him. I miss him. I need him. Don't deprive me of this one favor. Bring him back Do as I tell you. Keep him in the city, and when he is ten I will give the money that I premised him-$100,000.’ In September, 1901, the following conversation is said to have occurred: ‘I said that Charles had been ill. That he had had an abscess. Blood poison had formed. He had been taken to the hospital. Dr. Gibb had operated on him. That the bills were very large. The school was expensive. He was growing; and that I wanted more money. He said: ‘My love, I think $10 a day is enough, don't you?’ I said, ‘Hardly, under the circumstances; that I should like to have an increase of money just at that time.’ But he objected. He says: ‘Pay your bills outof the money I give you regularly-yours and the boy's. The time now is very short. Charles is nine. He will son be ten. Be satisfied with the amount that you now have, because in a few months, when he is ten, he will have $100,000 that I will give him.’' On her cross-examination she testified that her relations with Mr. Rouss continued to be cordial and pleasant up to the time of his death, although she admitted that in May, 1900, by the aid of a policeman, she was put out of his house on Fifth avenue, where she had called to object to his attentions to another woman. She also recalled an occasion when Rouss was riding with some woman, and she ‘tried to get in and did get in’ the carriage. He did not repulse her, but left the carriage with his companion, leaving Mrs. Rosseau the sole occupant. Referring to the interview of My, she stated the promise of Mr. Rouss as follows: ‘I own an establishment down on Broadway. I have a little money, and my boy shall have the benefit of it. He is, when he is ten years of age, provided you do as I tell you, to have $100,000 on his tenth birthday-the 5th of June. * * * He said, ‘When Charles is ten, he is to go down into the store, and be a partner in the store with his brother.’' She did not frequently have disputes with him in regard to the amount of money he allowed her, or make frequent demands for more than the $10 a day, ‘not after this contract was made by him.’ After the death of Mr. Rouss she made a claim against his estate for dower, on the ground of an alleged common-law marriage with him after the death of Mrs. Rouss. In March, 1902, she was paid $23,000 in settlement of that claim, but she did not say anything then or previously about the claim of her son for $100,000, which was not presented to the executor until July, 1902. At first she said she did not have it in mind, but later admitted that she thought of it, although she said nothing about it. She had been told by her counsel that the claim of her son would not be affected by the release of her claim for dower. She did not consult her counsel in relation to the claim of the boy, or tell him that the boy had a claim, but ‘he told me; he suggested it.’ She further testified that she kept and supported the boy in the city as Mr. Rouss directed, but it did not appear that she had any means of supporting either herself or the child, except the allowance of $10 a day. She did not testify that she had any property of her own, or that she expended any money of her own in supporting the plaintiff, or in keeping him in the city of New York, as the decedent requested, and as she had done for nine years. So far as appeared, her compliance with that request for less than a year was the only consideration to support the contract. Mrs. Rosseau was the only witness who was present when the alleged agreement was made, but her story was corroborated, to some extent, by three witnesses, who testified to admissions said to have been made by the decedent to the effect that he had made a contract resembling the one sworn to by her.

Thus the evidence relied upon to establish the contract is, first, the testimony of the mother, who tried to swear $100,000 into the pocket of her own child; and, second, the testimony of witnesses who swear to the admissions of a dead man. The former is dangerous, the latter is weak, and neither should be acted upon without great caution. We have repeatedly held that such a contract must not only be certain and definite, and founded upon an adequate consideration, but also that it must be established by the clearest and most convincing evidence. We have been emphatic in condemning these agreements, because they ‘have become so frequent in recent years as to cause alarm.’ We have been rigid and exacting as to the sufficiency of the evidence to establish them, and have condemned the proof thereof ‘through parol evidence given by interested witnesses.’ As ‘such contracts are easily fabricated, and hard to disprove, because the sole contracting party on one side is always dead when the question arises,’ we have declared that they ‘should be in writing, and the writing should be produced, or, if ever based upon parol evidence, it should be give or corroborated in all substantial particulars by disinterested witnesses.’ Hamlin v. Stevens, 177 N. Y. 39, 69 N. E. 118;Mahaney v. Carr, 175 N. Y. 454, 67 N. E. 903;Ide v. Brown, 178 N. Y. 26, 70 N. E. 101;Edson v. Parsons, 155 N. Y. 555, 50 N. E. 265;Shakespeare v. Markham, 72 N. Y. 400.

We do not deem it necessary to pass upon the sufficiency of the evidence by which it is claimed that the contract was established, or the sufficiency of the consideration alleged, as we think that the judgment should be reversed because Mrs. Rosseau, the principal witness for the plaintiff, was incompetent to testify under section 829 of the Code...