
    Maggie Tyrrell, Resp’t, v. James York, App’lt.
    
      (Supreme Court, General Term, Third Department
    
    
      Filed July 7, 1890.)
    
    1. Gift — Husband and wib'e— Delivery must be shown.
    While slight evidence of gift may suffice as to a wife’s personal ornaments, as to such things as furniture, which are in common use in the family, an executed gift must be shown by delivery to the wife and possession by her. The ordinary use in the family does not show her possession.
    :2. Same — Consideration.
    Plaintiff claimed that certain furniture was given to her by her husband in consideration of her returning and living with him after commencing an action for divorce. It appeared that plaintiff, with knowledge that Tyrrell had a wife living, went with him to Jersey City and was married to him there. There was no evidence that Tyrrell was divorced from his former wife. Held, that these facts showed that the relationship between her and Tyrrell must have been known to plaintiff to be illegal, and her promise to continue therein could afford no valid consideration for a contract on his part.
    Appeal from judgment in favor of plaintiff, entered upon the verdict of a jury.
    
      Andrew Hamilton, for app’lt; James H Ryan, for resp’t
   Learned P. J.

This action was brought in a justice’s court to recover damages for taking goods and chattels. The plaintiff recovered and the defendant appealed. On a new trial in the county •court the plaintiff again recpvered, and the defendant appealed.

The plaintiff claims to have been the owner of this property (household furniture) when it was taken by defendant. The defendant avers that on the 14th of January, 1888, John Tyrrell, then the owner, mortgaged the property to defendant, and that by virtue of the mortgage defendant took and sold the property, February 29, 1888.

Tyrrell bought the property of defendant in December, 1886, •and took it to his house, where he and plaintiff were living as husband and wife. They had been married (at least formally) in 'September, 1886. On February 20, 1888, Tyrrell went away from plaintiff. She claims that in January, 1887, and again in July, 1887, Tyrrell gave her this property. Of course, the material question is as to her title. If she owned the property, Tyrrell could not give a valid mortgage on it. If she did not own it, then it is immaterial whether the-mortgage was for more or less than Tyrrell owed York.

Her title must depend on the ■ alleged gift by Tyrrell to her. Because it is plain that before such alleged gift the property was ’Tyrrell’s. .

She says Tyrrell secured a house in December, 1886, and put the furniture in it; that he gave it to her the first week in January, 1887; that she had him arrested in July, 1887, when he had been drinking ; and she also commenced an action for divorce against him; that he then took the pledge and agreed, if she would return and live with him, that all the furniture should be her’s; and that she returned and lived with him till he went away. This last arrangement is • also testified to by the police justice before whom Tyrrell was brought

The defendant insists that there was not sufficient proof of a gift to go to the jury, and not sufficient delivery of possession to go to the jury as showing a completed gift*

The doctrine applicable to this case is shown in Armitage v. Mace, 96 N. Y., 588, where, on slight evidence of the gift by a husband to his wife of a mare, it was held that there was enough to show “ all the possession that a wife living with her husband could have; ” and the law is further shown in Whiton v. Snyder, 88 N. Y., 299. There, after speaking of personal ornaments, etc., the court says: “As to * * * furniture * * * adapted, to the use of and used by the family generally, and in their common possession, a different rule must apply. * * * . The difficulty of establishing an express gift by showing a delivery or a separate and personal possession remains.” That is: that while slight evidence of gift may suffice as to a wife’s personal ornaments, on the other hand as to such things as furniture, which are in common use in the family, an executed gift must be shown by delivery to the wife and possession by her. The ordinary use in the family does not show her possession.

It is plain that there" was no proof of an executed gift in January, 1887. Nor was "there any such change of possession as would make an executed gift out of the transaction of July, 1887. But it might be said that there was then a contract by plaintiff to return and live with Tyrrell after by his conduct he had forfeited all right to fier society. In answer to this the defendant says that, if she was not the lawful wife of Tyrrell, then the contract was for future illicit intercourse, and was Aoid.

The plaintiff says she had lived in West Troy thirty-four years; had known Tyrrell a great many years by sight; had known of his wife and family; and that Tyrrell told plaintiff he was not a widower. It is undisputed that Tyrrell and his wife lived in West Troy thirty years, and had nine children born there; and that four or ÜAe years before the trial Tyrrell and his wife separated. She went to North Adams, where she was liAÚng at the time of the trial, and he remained in West Troy. Tyrrell and plaintiff went to New Jersey; was there two hours; were married,, and returned to West Troy. She says she did not feel like getting married in West Troy; that Tyrrell thought it would be more binding to be married in New Jersey. '

We have then the fact that plaintiff knew that Tyrrell had been a married man for many years, and knew he had children, and. that his wife was living. There is no evidence that he had been divorced, or that plaintiff had any reason to suppose that he had been divorced. These facts, together with the circumstance that-she and Tyrrell went to another state merely to have the marriage ceremony performed, without any explanation, show that the relationship between them, though under the pretense of marriage, must have been known to her to be illegal. Her promise to continue therein could, therefore, afford no valid consideration for a, contract on his part.

Indeed the learned court thus charged with the qualification, if she knew the fact of Tyrrell’s marriage. We think that there is no contradictory evidence on that point.

The judgment and order should be reversed, and a new trial granted, costs to abide event.

" Landon and Mayham, JJ., concur.  