
    Clark, as trustee of Jennie P. Fosdick, v. Fosdick, et al.
    
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      June 7, 1886.)
    
    1. Articles of separation — Action to enforce — By whom to be
    BROUGHT.
    All action against a husband, to enforce articles of separation, through the intervention of a trustee, should he brought by the latter, who is a trustee of an express trust.
    2. Same—Complaint—Sufficiency of allegations.
    In such an action, it is not necessary to allege in the complaint the existence of the grounds for a limited divorce, as fully as in an action for divorce. Allegations in the complaint that the parties, immediately after the execution of the agreement, acted upon it, and have continued to do so ever since, are sufficient:
    ■3. Same—Effect of divorce subsequently obtained.
    A divorce subsequently obtained by the wife for cause existing prior to the execution of articles of separation, does not annul an agreement therein contained to pay a stated amount for the wife’s maintenance.
    Appeal from a judgment entered on an order of the general term of the city court, affirming a judgment entered on an order overruling the demurrer to the complaint.
    
      H. M. Whitehead, for defendand appellant.
    
      Horace Russell, for plaintiff and respondent.
   Bookstaver, J.

This action was brought against the defendant by the plaintiff, as trustee, to recover the quarterly payment of $625, due on December 1, 1885, under certain articles of separation, executed by 0. Baldwin Fosdick and Charles B. Fosdick, wife of 0. Baldwin Fosdick and Bainbridge S. Clark of the other part. The defendants interposed a demurrer to the complaint on the grounds: First. That the plaintiff has not the legal capacity to sue, for that the trust has ceased and the plaintiff has no longer any interest, the only party in interest at the time of the commencement of the action being Jennie P. Fosdick. Second. That said complaint does not state facts sufficient to constitute a cause of action. Third. That there is a defect of parties plaintiff in that Jennie P. Fosdick is not named therein as a party plaintiff therein. Upon the argument in this court, plaintiff’s first contention was that the articles of separation Were invalid upon their face as without a good consideration, and as not showing that the bill of separation would lie.

Counsel for the defendants admitted that the articles of separation would be good under the English decisions, but claims that they were not good under the decisions in this state, and relies upon Rogers v. Rogers, (4 Paige, 517); Beach v. Beach (2 Hills, 280); Cropsey v. McKinney (30 Barb., 41); Morgan v. Potter (17 Hun., 403). In Rogers v. Rogers, as far as appears from the case, the agreement to live separate was executed directly between the husband and wife, for the chancellor says: “Although her brother, in whose name the suit was instituted, as the next friend of the complainant, gave no written assent to the terms of the settlement, he was undoubtedly consulted in relation to the propriety of the compromise of the suit.” And again, in speaking of articles of separation, he says: “It merely tolerates such agreements when made in such a manner that they can be enforced by or against a third person acting in behalf of the wife.”

Beach v. Beach was an action at law, and the court held that in such an action articles of separation of the character of those then under consideration would not be upheld, but admits that where the articles of separation were made with a third party, and the husband was properly indemnified against the wife’s acts by a trustee, the agreement would be enforced in equity, thus recognizing their validity.

In Cropsey v. McKinney there was no covenant in the deed of separation on the part of the trustee to indemnify the husband against the debts of his wife, and consequently there was no.consideration moving the husband to its execution and it was held void.

In Morgan v. Potter the transaction was directly between the husband and wife, without the intervention of a trustee. In the agreement in this action, although it recites that it was made between the husband and wife as principals and the defendant, Charles B. Fosdick, and Bainbridge S. Clark, as sureties, yet in the body of the instrument the defendant, O. Baldwin Fosdick, covenanted to and with the said Jennie-P. Fosdick, his wife, and also to and with the said Bainbridge S. Clark, that the said 0. Baldwin Fosdick should well and truly pay or cause to be paid unto the said Bainbridge S. Clark for the support and maintenance of his wife and their children the yearly sum of $2,500, and Charles B. Fosdick covenanted that 0. Baldwin Fosdick would perform all the conditions of the agreement on his part to be performed and particularly that he would pay the said sum of $2,500.

Bainbridge S Clark, the plaintiff in this action, also covenanted, among other things, that he would indemnify and bear harmless the said C Baldwin Fosdick from all debts, of his wife then existing or that might thereafter be contracted by her.

In Dupre v. Rein (7 Abb., N. C., 256), it was decided by the court that such a contract was for the benefit of another, and that this constituted the plaintiff a trustee of an express trust. That such agreements are valid under the laws of this state, we think is well sustained by the following decisions: Carson v. Murray. 3 Paige, 488; Champlain v. Champlain, 1 Hoff. Ch., 54; Hyer v Burger. 1 Hoff. Ch., 1; Anderson v, Anderson. Edw. Ch., 330; Allens v. Afflick, 64 How. Pr., 330.; Dupre v. Rein, (supra); Potter v. Potter, 8 Civ. Pro. R.. 150.

Defendants also contend that even if the agreement was-valid it was not properly declared upon, because it did not. set forth facts showing the existence of grounds for a limited divorce, and also because it does not state that the-defendants have had access to the children or that the wife-had not incurred debts which the defendants had becomehable for or been obliged to pay.

We do not think it is necessary to allege in the complaint the existence of the grounds for a limited divorce as fully as in an action for such divorce. The complaint alleges that the parties immediately after the execution of the agreement acted upon it and have continued to do so ever since. In our judgment the allegations contained in the complaint are sufficient, and it is not subject to the criticisms made in Dupre v. Rein (supra).

The other matters which defendants’ counsel claims, should have been stated are matters of defense, and if they exist, should have been taken advantage.of by answer. Defendants also contend that although the agreement may be valid, yet the decree of divorce obtained in another state, terminated the separation agreement. This, we think,, very pertinently answered by Judge Beach in deciding a demurrer to a bill brought by defendants m the supreme court to prevent the plaintiff and Jennie P Fosdick from commencing action upon this agreement. He says: “That this undertaking was assumed for the purpose of fulfilling a legal obligation to support the wife is quite probable, it being the legal effect, but that it was to provide her and the children with support so long as she continue to be his wife, and not thereafter, is an idea impossible to entertain, for no such restriction is in the agreement. I think the principal question presented by the demurrer is whether or not the divorce subsequently obtained by the wife for cause existing prior to the articles of separation renders the agreement null and void. This appears to have been settled in the negative by numerous adjudications.” Stewart on Marriage and Divorce, § 191; Grant v. Budd, 30 Law Times Rep., 319; Charlesworth v. Holt, 48 L. J. (N. S.), Ex., 25; Anderson v. Anderson, 1 Edw. Ch., 380; Wright v. Miller, 1 Sand. Ch. 108, 124, 126.

That the plaintiff has the legal capacity to sue we think has been abundantly decided. Code Civ. Pro., § 449; Dupre v. Rein, supra; Potter v. Potter, supra; Greenfield, adm'r, v. The Mass. Ins. Co., 47 N. Y. 480; Hughes v. Mer. Ins. Co., 44 How. Pr., 351.

As to the contention that the decree of divorce awards the custody of the children to the wife, and that this is a violation of the articles of separation, it is sufficient to say that the articles of separation themselves provided that she should have their custody, and these would not be violated until the wife actually refused to allow the husband or his parents access to the children.

Defendants state in their brief that they do not seek to answer over.

We think, therefore, the judgment should be affirmed, with costs.

Allen, J., concurred.  