
    DUPRE v. REIN.
    
      N. Y. Common Pleas;
    
    
      Special Term, 1879.
    Husband and Wife.—Articles of Separation.—Parties.—Pleading.—Trusts.—Code of Civ. Pro. § 449.
    An action against a husband, to enforce articles of separation, through the intervention of a trustee, should be brought by the latter, who, under section 449 of the Code of Civil Procedure, is a trustee of an express trust.
    
    In articles of separation between husband and wife, through the intervention of a trustee, a covenant, on the part of the husband, to pay a stipulated sum for her support, and that of her trustee, to indemnify the husband from liability for her debts, are not illegal nor contrary to public policy.
    In an action by the trustee to compel the husband to comply with the articles of separation, it is not enough to set forth the agreement in extenso, and declare a breach of it for failure to pay the stipulated '' amount for the wife’s support, without averring that the separation had actually taken place; but all facts byway of inducement should be pleaded to enable the court to decide whether or not a prima facie case is presented.
    Such a contract is not an instrument for the payment of money only, within the meaning of section 534 of the Code of Civil Procedure.
    
    Demurrer by defendant, to complaint.
    This action was brought by Ovide Dupre, as trustee for Clara Rein, against Philip Rein, to compel the payment of the amount agreed by defendant, in articles of separation between himself and wife, through the intervention of the plaintiff, to be paid for her support.
    The complaint averred that, on September 21, 1874, the defendant and Clara Rein, his wife, entered into articles of separation, which were set forth in full, whereby the defendant agreed with her and Dupre, as her trustee, that defendant and his wife should live separate and apart, and, in consideration of the premises, defendant, among other things, agreed to pay, or cause to be paid to the plaintiff, as such trustee, $25 per week for the support and maintenance of his wife. The trustee covenanted and agreed with the defendant to indemnify and bear him harmless from all debts of said wife, contracted, or to be contracted, by her or on her account. Each of the parties were bound, by mutual covenants, to carry out the agreement. It was further averred that, although demand had been made therefor, only three weekly installments had been paid, and that there was due to the plaintiff, as such trustee, the sum of $3,825, for which he demanded judgment, with interest and costs.
    The defendant demurred on the following grounds :
    1st. Defect of parties plaintiff.
    2d. That the complaint did not state facts sufficient to constitute a cause of action.
    
      George B. Horne, for defendant and demurrer.
    
      Dupre & Yeitch, for plaintiff, opposed.
    
      
       As to the construction of such statute, see also Chew v. Brumagem, 13 Wall. 497.
    
    
      
       See also Peyser v. McCormack, 7 Hun, 300; Woodruff v. Leonard, 1 Id. 632.
    
   Larremore, J.

[After stating the facts.]—The first ground must be overruled. The contract with plaintiff was for the benefit of another. This constituted him a trustee of an express trust (Code Civ. Pro. § 449). He alone would be liable to the husband for the wife’s breach of covenants (Bishop on Mar. & Div. § 647), and the action is properly brought in his name (Parsons on Contr. § 357 ; Fenner v. Lewis, 10 Johns. 38 ; Nichols v. Palmer, 5 Day [Conn.] 47; Goddard v. Beebe, 4 Greene [Iowa], 350 ; Dunning v. Williams, 26 Conn. 226).

The second ground of demurrer puts at issue both the validity of the agreement and the sufficiency of the allegations of the complaint.

The courts have never recognized nor countenanced any agreement between husband and wife that seeks, independent of the statute, to effect a practical dissolution of the marriage relation. But the obligation of the husband to support, and the trustee to indemnify, as provided in this agreement, has been repeatedly upheld by express judicial sanction, when there has been a present and actual separation.

Lord Brougham recognized this doctrine in Warrender v. Warrender (2 Clark & F. 527), and other English authorities maintain it (Elworthy v. Bird, 2 Sim. & S. 372; Wilson v. Wilson, 31 Eng. Law & Eq. 29 ; 1 Ho. Lords Cas. 538 ; 5 Id. 40; Jee v. Thurlow, 2 Barn. & Cress. 547 ; Westmeath v. Salisbury, 5 Bligh, N. S. 339).

In Worrall v. Jacob (5 Meriv. 256), the master of the rolls held it as settled law that the courts would enforce such an agreement. To the same effect is Fletcher v. Fletcher (2 Cox, 99). In Elworthy v. Bird, supra, the vice-chancellor held that, as the agreement contained an engagement on the part of the trustees, to indemnify the husband from his wife’s debts, in consideration of his stipulation to pay her £50 a year? the court would enforce, the stipulation.

It is unnecessary to incumber the record with the citation of authorities in the different States Which uphold the same- theory. It will best serve my purpose to refer to decisions in this State, in support ■ of the proposition already advanced: Heyer v. Burger, 1 Hoff. 1; Champlin v. Champlin, Id. 55; Carson v. Murray, 3 Paige, 483 ; Rodgers v. Rodgers, 4 Id. 516 ; Calkins v. Calkins, 22 Barb. 97 ; Simmons v. McElvain, 26 Id. 419 ; Cropsey v. McKinney, 30 Barb. 47 ; Wallace v. Bassett, 41 Barb. 92; Anderson v. Anderson, 1 Edw. Ch. 380.

From the cases cited the conclusion follows that in articles of separation between husband and wife, through the intervention of a trustee, the covenant on the part of the husband to pay a stipulated sum for her support, and that of her trustee to indemnify the husband from liability for her debts, are not illegal or contrary to public policy. The remaining question is, the sufficiency of the allegations of the complaint to constitute a cause of action.

The plaintiff has treated the agreement in question as an instrument for the payment of money only (Code, § 534). Upon this point, I think, he has misapprehended the spirit and intention of the statute. The contract on the part of the husband to pay for the support of his wife was environed by conditions precedent or concurrent, which constituted the consideration of the contract. To set forth an agreement of this character, in extenso, and declare a breach of it for failure to pay, is not good pleading. It does not appear that the contemplated separation ever took place (Carson v. Murray, supra;).

As the law only tolerates such an agreement when it can be enforced by a third person, acting in behalf of the wife (4 Paige, 516), all facts by way of inducement should be pleaded to enable the court to decide whether or not & prima facie case is presented. Upon this branch of the demurrer the defendant must prevail, with leave to plaintiff to amend his complaint on payment of costs. Upon the other issues of the case the demurrer is overruled, with leave to the defendant to answer, on payment of costs.  