
    Beckie Levine, Appellant, v. Philip Klein, Respondent.
    (Supreme Court, Appellate Term,
    December, 1909.)
    Marriage — In general — Nature of marriage contract — Contracts for dissolution.
    The provisions of section 21 of the Domestic Relations Law, that husband and wife cannot contract to dissolve a marriage, are not limited to formal or express words used in an attempt to effect such a contract, but are applicable if, by collusion or connivance, there be a corrupt consent of one party to the commission of such acts of the other as would furnish cause for divorce.
    Where it appears that, after the wife had demanded money loaned to her husband and had signed certain papers, he told her he would pay the money for her to defendant to whom he said: “ This is my wife’s money that I borrowed from her and I want to return it back to her * * * I will now try to get a divorce,” the facts do not evidence such an unlawful agreement to dissolve the marriage as to preclude plaintiff from recovering the money from defendant.
    Appeal by the plaintiff from a judgment of the City Court of the city of Hew York, dismissing the complaint, and from an order denying a motion for a new trial.
    Joseph Gans, for appellant.
    Samuel Schlesinger, for respondent.,
   Goff, J.

Set forth in the complaint are these allegations of fact: (1) the depositing of $500 with the defendant for the plaintiff; (2) his acceptance of and promise to hold it for her use and benefit and pay it to her; (3) that he still holds it and refuses to pay, though demand has been made, and (4) that the money is and at all times was the property of plaintiff. These were the issues tendered, and they were met by a general denial. On the trial, plaintiff testified that, after her marriage, she loaned to her husband $500 to he paid on demand. Subsequently she made demand and he said; Come to my lawyer and if yon will sign some papers I will return to you the money.” She went to the lawyer’s office and made her mark on some papers; then the husband said: “ Come with me to Dr. Klein’s ” (the defendant— a rabbi) ; and when there he took the money from his pocket and gave it to defendant, saying: This is my wife’s money that I borrowed from her and I want to return it back to her * * * I will now try to get a divorce and you. (the plaintiff) will get that money from Dr. Klein.” She also testified that it was said that the money that was put up with I)r. Klein was to be held by him for a divorce.” (Who said it does not appear.) On cross-examination she testified that her husband said to the defendant: “ I borrowed this money from my wife — this is my wife’s money and now I will try to get a divorce and you, Dr. Klein, can give the money to her;” and, further, that the $500 was deposited with defendant about four months after her marriage. ¡No suit for divorce was commenced. At the close of the plaintiff’s case a motion was made to dismiss the complaint, on the ground that the plaintiff had failed to prove a cause of action. The theory of the defendant was that, the money having been deposited with the defendant to be held by him until the happening of a “ specific event ”— that is a divorce between the plaintiff and her husband — and that event not having happened, the defendant could not be required to pay over the money. This theory was adopted by the learned trial justice and he dismissed the complaint. Counsel for appellant contends that the deposit of the money was based on an agreement for a divorce between husband and wife; that such agreement was illegal and void and that defendant cannot avail himself of it; while respondent’s counsel contends that the money deposited was on condition that it should only be paid to plaintiff when a divorce was obtained and, that being an illegal consideration, the law will not aid the plaintiff to recover upon an illegal contract. Both counsel agree that there was an illegal contract, but each invokes it as destructive of the other’s claim. In this both are wrong. An illegal contract — concerning this case — is well defined by the statute. Section 21 of the Domestic Relations Law provides that husband and wife cannot contract to dissolve a marriage. It is not necessary that formal or express words be used to effect such a contract. It is sufficient if, by collusion or connivance, there be a corrupt consent of one party to the commission of the acts of the other which furnish cause for divorce. Where is the evidence of an open or secret agreement between the husband and wife that one should furnish a cause for divorce, or of conspiracy — for conspiracy is synonymous with collusion •—■ or of connivance'? When the husband said: “ This is my wife’s money * * * I want to return it to her * * *

I will now try to get a divorce,” he did not say anything from which could be inferred a collusive or a conniving agreement. According to his words their fullest import was that they gave expression to a purpose on his part; but in no sense do they give, even by implication, expression to a similar purpose on his wife’s part. They may have been an empty boast or a threat, the result of connubial irritation, or he may have unjustifiably thought that he had sufficient cause; but the law will not spell out an unlawful agreement from such an utterance. Indeed, a husband has a right and it is his duty—• save an exception — to make provision for his wife in the event of a divorce. But, whatever may have been in his mind, the essential element of agreement on the wife’s part is lacking. Neither by word nor act did she assent to or promise anything. She was not in any way contributing to or benefiting by the transaction. Eo consideration moved from her. Practically she was helpless, as she saw the money that was rightfully hers, and to which she was concededly entitled to immediate possession, handed over to the respondent to be held by him and given to her when her husband obtained a divorce to which she was in no sense a consenting or conniving party. Surely the law, whose object is justice, will not, so far as the wife is concerned, construct an illegal contract out of such a transaction.

Eliminating the contention of the illegality of the contract, there remains the contention of the respondent that he cannot be called upon to give up the money until the happening of the prescribed event. This event was not a condition, either precedent or subsequent. It did not depend upon something being done in the way of performance; it was a contingency which, as defined in People v. Village, etc., 39 Barb. 266, 272, is a fortuitous event which comes without design, foresight or expectation. The law does not regard divorce as a normal resultant of marital life. When it occurs, it should, in the eye of the law, occur without design, foresight or expectation. It is, therefore, a fortuitous event; and anything that is made to depend upon it rests upon what is vague, uncertain and indefinite. Can the holder of another person’s money, in which he has no present or future interest, retain it for all time, because an event uncertain in its nature never occurs ? Suppose the husband and wife lived amicably together and divorce was never sought, could the holder resist all efforts to get that money out of his hands ? Or, suppose the wife died, bearing in mind that the money was her property — would her legal representative be unable to recover it? The holder’s retention of the money in either of these cases would be a wrong, and for the wrong the law provides a remedy. But even a more forceful reason exists why this contingency cannot be used as a shield by the respondent. It depends upon an event which can only occur by the commission of an immoral and criminal act, for the law now declares adultery a crime; and the law will not indefinitely postpone a liability already incurred, where its discharge is made contingent on the commission of crime. We are then confronted with the question: What is the remedy which the law provides ? Appellant has chosen the form of action in assumpsit for money had and received. This is an equitable action, governed by equitable principles (Wright v. Butler, 6 Wend. 284; Eddy v. Smith, 13 id. 488; Rathbone v. Stocking, 2 Barb. 135) ; and, when a holder has money in his hands belonging to another which in equity and good conscience he ought to pay over, the action will lie. Mason v. Prendergast, 120 N. Y. 536; Lawatsch v. Cooney, 20 App. Div. 470; Villias v. Stern, 24 Misc. Rep. 380.

Eor the purposes of this appeal, the evidence of the appellant must be taken as true. It sustained all the allegations of the complaint. It showed that she had the money before her marriage; that shortly thereafter she loaned it to her husband; that he set apart a sum of money, designating it as the money belonging to his wife, and gave it to respondent to give to her. Unburdened with any question of illegal contract or unhampered by any question of a legally impossible contingency, this evidence showed that a debtor, acknowledging his debt, handed the money to the respondent, as his agent, to pay the debt to the creditor;' and this established a good cause of action (Weston v. Brown, 158 N. Y. 360; Denny v. Lincoln, 5 Mass. 385), which it was error to dismiss. This conclusion is not in conflict with the opinion' of this court on a previous appeal in this case. 113 N. Y. Supp. 95. There the question was the insufficiency of proof of ownership of the money, here the testimony on that point is complete.

Judgment and order reversed and a new trial ordered, with costs to appellant to abide the event.

Giegerich, J., concurs.

Lehman, J. (concurring).

At the time that the deposit was made, the plaintiff and the defendant were living together ; and it was an essential part of the agreement that they should thereafter separate. In such a case the contract is void. Poillon v. Poillon, 49 App. Div. 341; Winter v. Winter, 191 N. Y. 462, 410. Moreover, the acts of the parties must be given some reasonable intendment; and, if the money actually belonged to the plaintiff, then the refusal of her husband to pay it to her till after he had obtained a divorce would show an intention on his part to procure her consent to a divorce, and the courts should refuse to enforce a condition imposed evidently only for such a purpose. The defendant herein had no interest in the fund deposited with him; he is merely the depositary. If in fact the money belongs to the plaintiff and is held by him under an illegal contract or under a condition void because of its uncertainty, he should pay it over to the owner. Under such circumstances the depositor -may bring an action for money had and received. O’Maley v. Reese, 6 Barb. 658. The plaintiff has made ont a prima facie case of ownership; and the court should not have dismissed the complaint, since the defendant has no right to hold the money.

I concur in the result for this reason.

Judgment and order reversed, and new trial ordered, with costs to appellant to abide event.  