
    Robert B. Minor, Respondent, v. Mary V. Parker, Appellant, Impleaded with James H. Pettengill, as Trustee, Defendant.
    
      Executory contract between a husband and wife who lire apa/i’t— the rule as to its enforcement — objection that no refusal to sue by the trustee was shown, how taken.
    
    The rule that in order to enforce an executory contract obtained by a husband from his wife, the former must show an adequate consideration and the utmost good faith in obtaining the contract, only applies where the marital relation has not been disturbed and the parties are living on such terms of intimacy and confidence as exist between husband and wife.
    The rule does not apply to a contract, made between a husband and wife who had been living apart for a period of five years, by which the wife agrees to pay to a trustee a certain sum weekly for the support and maintenance of the husband, where it appears that during the time the parties cohabited the husband advanced to the wife moneys to be used in part for his support in his old age and that the contract was made in settlement of a lawsuit which the husband threatened to bring to enforce the alleged agreement for his support or to recover money advanced, and that in the execution of the contract the parties dealt at arms’ length through an attorney.
    The objection that the complaint, in an. action brought by an assignee of the husband against the wife and the trustee to recover upon the agreement, does not allege notice to, and a refusal by, the trustee to sue, must be taken by answer or demurrer, and if not so taken will be deemed to be waived.
    Appeal by the defendant, Mary Y. Parker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of February, 1901, and also from an order entered in said clerk’s office on the 7th day of March, 1901, denying said defendant’s motion for a new trial made upon the minutes.
    The action was brought by the plaintiff as assignee of George W. Parker to recover upon an agreement which the latter had made with the defendant, his wife, from whom he had at the date of the agreement been living apart for a period of five years. The agreement, which is dated January 31, 1895, recites that “ The parties of the first and second part were married on or about the 17th day of September, 1879, and have since then for a period of time, lived and cohabited together; and the party of the first part claims that he has during that time advanced to the party of the second part sums of money amounting to several thousand of dollars, which were to be used for the mutual support and maintenance of the parties of the first and second part during their lives; and the said parties * * * have agreed to live separate and apart from each other; and the party of the first part claims that in consideration of the money so alleged to have been advanced by him to the party of the second part,-she should apply out of the same a sum sufficient for the support and maintenance of the said party of the first part during his life, which she is willing to do.
    
      “Now, therefore, in consideration of the circumstances, it is agreed that the party of the second part will pay * * * to the party of the third part (J. H. Pettengill), as the trustee of the party of the first part, the sum of ten ($10) dollars weekly from the date of this agreement for the support and maintenance of the party of the first part during his life. * * * And the party of the first part releases the party of the second part from all other claims.”
    The answer alleged that the defendant signed the paper without any consideration, and that no sums were advanced for mutual support and maintenance. After testimony was given on both sides, the question of whether or not there was a consideration for the agreement was submitted to the jury, whose verdict was in favor of the plaintiff, and from the judgment entered thereon the defendant appeals.
    
      Brainard Tolies, for the appellant.
    
      James M. Gifford, for the respondent.
   O’Brien, J. :

Many of the questions argued orally, and in his brief, by the learned counsel for the appellant are not properly before us. Thus it is insisted that the complaint is fatally defective in not having alleged notice to, and a refusal by, the trustees to sue. To be available, this objection should have been taken by answer or demurrer, and the failure to do so waived it. (Code Civ. Proc. §§ 488, 498, 499 ; Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648; Nanz v. Oakley, 122 id. 631; Coffin v. President, etc., Grand Rapids Hydraulic Co., 136 id. 655.) Again it is urged that the court erred in its charge to the jury upon the subject of the consideration necessary to support such an agreement. It does not appear that any exception was taken to the charge, and, therefore, that question also is not before us.

But assuming the question to be properly raised, we find in this record no violation of the rule contended for that in order to enforce an executory contract obtained by a husband from his wife it is necessary for the former to show adequate consideration and the utmost good faith in obtaining the contract. This is a salutary rule, but, strictly speaking, it applies only where the married relation has not been disturbed and the parties are living on such terms of intimacy and confidence as exist between husband and wife. Here it appears from the plaintiff’s testimony that during their married life the defendant had received from him considerable money under an agreement to save some of it for his support in his old age. After receipt of the money, the parties had separated and were living apart for a period of at least five_years when the plaintiff threatened the defendant with a lawsuit to enforce the agreement for his support or to recover back the money, and as the outcome of negotiations between the parties conducted by a lawyer to bring about a settlement, the agreement here sued upon was made.

Crediting the plaintiff’s testimony as the jury had a right to do, much of the argument which has been advanced as to agreements made between husband and wife while living together and the invalidity of such when the sole consideration is that the parties should live apart, is entirely foreign to a discussion of the facts here presented. The contention that the contract was one of separation is disproved not only by the fact that the parties had for a long period been living apart, but also by the instrument itself which recites that they “ have agreed to live separate and apart,” which in connection with the other recitals, is evidently the equivalent of saying that they “ had agreed to live separate and apart.” Here, therefore, the confidential relation of man and wife had been severed and the record shows that the parties were dealing at arm’s length through an attorney, and, therefore, that the necessity of proving the utmost good faith and the payment of a full and adequate consideration'—• which is the rule as to contracts made between husband and wife while the marriage relation exists — was entirely wanting.

The exceptions taken to rulings upon evidence we have examined, but do not regard them as serious enough to justify our interfering with the verdict, which, being supported by sufficient competent evidence, we think should stand.

The judgment accordingly should be affirmed, with costs.

Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.

Judgment affirmed, with costs.  