
    Margaret P. Boyd, Appellant, v. Alexander Boyd, Respondent.
    First Department,
    January 22, 1909.
    Appeal'—.when, record conclusive — practice when service of notice of appeal not timely—newly-discovered evidence — husband and wife — validity of separation agreement — mortgage given to secure performance of void agreement — foreclosure.
    On the argument of an appeal the Appellate Division will not look behind a certified record to ascertain whether the notice of appeal appearing therein was served within the time prescribed by law. A respondent desiring to raise the question as to whether the appeal was timely should move to dismiss the appeal upon proper papers.
    The mere fact that after trial a party has found out that it would have been desirable to produce certain evidence does not make it newly-discovered evidence so as to warrant a new trial.
    An agreement between husband and wife to live separately in the future, made without the intervention of a trustee, is void as against public policy, being in the nature of a contract to alter or dissolve the marriage relation. Such agreement is valid only where an actual separation had taken place at the time the contract is made.
    Although the husband in order to secure the performance of a provision in such illegal contract requiring him to pay a yearly sum for his wife’s support subsequently secured said payment by executing a mortgage to a third, person, the mortgage like the original agreement is void, and the wife as assignee of the mortgage is not entitled to foreclose.
    Appeal by the plaintiff, Margaret P. Boyd, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 13th day of February, 1906, upon the decision of the court rendered after a trial at the Hew York Special Term, and also from two orders entered in said clerk’s office on the 4th day of June, 1908, and the 8th day of August, 1908, respectively, denying the plaintiff’s motions for a new trial upon newly-discovered evidence.
    
      R. S. Johnson, for the appellant.
    
      Israel J. P. Adlerman, for the respondent.
   Houghton, J.:

The plaintiff is .the wife of the defendant, and on the 10th day of February, 1879, they entered into an agreement between themselves, without the intervention of a trustee, providing that they' should live separate and apart from each other, and that the defendant husband would pay to the plaintiff, in monthly installments, $1,000 per year for her separate' support and maintenance. The agreement does not recite that the parties had separated at the time of its execution, but simply states that they have agreed henceforth to liye separately and apart from each other.” The monthly payments were made for a little over a year when, on the 4th day of March, 1880, the defendant executed and delivered to one Swain his bond in the sum of $17,000, accompanied by a mortgage as security for the payment to the plaintiff of the $1,000 annually for her support and maintenance. The bond recites that differences having arisen between' the defendant and the plaintiff, in conse- . quence of which they have separated and are now living apart from each other and have mutually agreed to continue to live separate and apart from each other'during the remainder of their lives,” the defendant, for the purpose of providing a suitable support and maintenance for his wife, this plaintiff, while so living separate and apart from him during their joint lives, has agreed with Swain to. allow and pay to the plaintiff, or to Swain, his executors, administrators or assigns, for her use by way of alimony, such $1,000 in quarterly payments. The bond contained a condition that if the plaintiff should incur any indebtedness or damages which the defendant should be compelled to pay, such amount should be credited upon any payments due thereunder, and that if such annual payment in quarterly installments should be made the bond should be void. The mortgage contained the same conditions and obligations and both were delivered to Swain, who executed an agreement with the plaintiff that lie would not part with the mortgage or satisfy it without plaintiff’s consent. Defendant made all quarterly payments coming due by the term" of this bond and mortgage up to September 9, 1899, except two, and has made no payment since, and this action is brought for foreclosure.

In her complaint the plaintiff sets forth in full the agreement of separation and alleges that the bond and mortgage were given for the purpose of securing the payment annually of the $1,000 mentioned in the agreement of separation, and that pursuant to the terms of said agreement and bond and mortgage certain payments have fallen due, upon which she demands interest from the time when they should have been paid, and that she has done no act contrary to the terms of the bond or the agreement of separation which, would forfeit her rights thereto., In her prayer she asks that it shall be decreed'that the defendant pay to the plaintiff by way of alimony for her support and maintenance in accordance with the terms and conditions of the agreement, bond and mortgage,” the amounts due. thereunder.

By his answer the defendant admits the execution of the agreement and of the bond and mortgage, but alleges that they are all void by reason of the fact that he and plaintiff were living together as husband and wife at the time the agreement of separation was entered into, and that they continued so to live together as husband and' wife for some period of time after the giving of the bond and mortgage to secure the payment of the money stipulated to be paid by the agreement.

The plaintiff was not able to produce the bond and mortgage upon the trial. She did produce an assignment of the same from the executors of the will of Swain, who had died some years before, which assignment, however, was executed after the commencement of the action and was not received in evidence.

The learned trial court, notwithstanding the technical objections interposed by defendant, proceeded to the trial of the merits of the action and the plaintiff and defendant were sworn. The plaintiff testified that she became dissatisfied because she had no security for the payments under the contract and that she went to the defendant’s lawyer and the bond and mortgage were thereafter executed. The defendant testified that there had been no separation at the time the original agreement was entered into and that there was none at the time of the giving of, the bond and mortgage, and that he lived with the plaintiff for some time thereafter. The plaintiff conceded that she was living with the defendant as his wife up to the morning of the day upon which the agreement was executed, but denied that she lived with him as his wife at any time thereafter. The court found as a fact that there was no separation at the time the agreement of separation was entered into, and that the defendant and plaintiff continued to live together as husband and wife up to and beyond the time the bond and mortgage were 'executed and delivered, and that the agreement of separation was in effect an agreement of. the husband and wife to live separate and apart from each other, and was against public policy and. void, and that the security given for its performance was also void, and dismissed the complaint. Some time after judgment was entered, which delay, we assume, was excusable, the plaintiff made a motion for a new trial on newly-discovered evidence respecting the question of plaintiff and defendant living together as husband and wife after the day of the execution of the separation agreement. One of these motions was denied, with leave to renew, and the other was denied without such leave, and still a third motion was 'made on the same ground and on practically the same papers, which was also denied. The respondent makes the point upon this appeal that the plaintiff did not serve her notice of appeal from the judgment or from the first order denying upon the merits her motion for a. new trial within the time prescribed by law. These various notices of appeal are in the record which bears the certificate of the clerk. We are bound by the certified record, and cannot oh the argument of the appeal determine the regularity of the service of- the notices. If the respondent desired to bring up the question as to whether the appeals had been taken in time, he should have made a motion upon proper papers for its dismissal.

Treating the appeal from the judgment and from -the various orders .as properly taken, as we do, and assuming that the plaintiff has the right to bring the action because the bond and mortgage were executed for her benefit, which question, however, we do not decide, still we think the judgment and orders must be affirmed.

The motions for new trials were properly denied upon the merits. The new evidence in no sense could be said to be newly discovered. The best that can be said of it is that the plaintiff has newly discovered that it might be desirable to produce it. The plaintiff insists, however, that whether the original agreement of separation was valid or invalid, still the bond and mortgage is good and enforcible in her favor for the payments stipulated to be made therein.

If it were to be assumed that plaintiff and defendant were living apart at the time of the execution of the bond and mortgage, and that there had been no agreement to live separate and apart, quite a different question as to the validity and enforcibility of the bond and mortgage would be presented from the one we are called upon to decide. By repeated allegations in her complaint, as well as by her testimony on the trial, the plaintiff insists that the bond and mortgage which she seeks to foreclose were given to secure the payment to her of the annual sum of $1,000 stipulated in the separation agreement. Thus, by her allegations and proof, the plaintiff has made the validity of the bond and mortgage dependent upon the validity of the separation agreement. If that agreement was void as against, public policy, the security given to insure the performance of its provisions is also void. If a connection between an original illegal transaction and a new promise can be traced, no matter how many times and in how many different forms it may be renewed, it cannot form the basis of a recovery. Every new agreement in furtherance of, or for the purpose of carrying into effect any of the unexecuted provisions of a previous illegal agreement is likewise illegal and void. (Gray v. Hook, 4 N. Y. 449 ; Friedman v. Bierman, 43 Hun, 387, 390; 9 Cyc. 562.) An agreement executed by a husband and wife, without the intervention of a trustee, to live separate and apart from each other in the future is void as against public policy, because it is in the nature of a contract to alter or dissolve the marriage relation. (Poillon v. Poillon, 49 App. Div. 341; Maney v. Maney, 119 id. 765.) Such contracts were upheld in Winter v. Winter (191 N. Y. 462) and in Effray v. Effray (110 App. Div. 545) on the sole ground that there had been an actual separation and the husband and wife were actually living apart at the time the contracts were entered into. Under the findings of the trial court, which we cannot disturb because there is no such, preponderance of proof in plaintiff’s suit as to warrant a reversal of the facts by this court, the agreement in question was void, and the security given for the performance of its conditions was also void.

. In Lawson v. Lawson (56 App. Div. 535) there was no agreement of separation, and it appeared that when the obligation sued on was given by the husband, he and his wife were living separate and apart, and she had just cause for not living with him. However unfortunate this litigation may seem, and however meritorious plaintiff’s claim against her husband for support may be,, she must pursue her remedy against him in some other form rather than through the foreclosure of the moitgage which was given. ■

The judgment must be affirmed, but without costs.

Patterson, P. J., Ingraham, McLaughlin and Clarke, JJ., concurred.

Judgment and orders affirmed, without costs.  