[1] We find no error in admitting evidence from Townsend and Mrs. Paulson to contradict plaintiff's denials of having visited the witness Townsend and representing herself there as his wife. Her relations with Townsend were not collateral, as he was the person whom she originally claimed had assisted her right after the accident, and hence evidence of her prior intimacy with him, in connection with her attempt to use him as a witness, became strictly admissible. Wigmore, § 1006, note 4.

[2] Neither was there error in the charge as finally qualified. The jury were properly told that, unless plaintiff consented, the physicians whom her attorneys had called to examine her could not be required to disclose what they had thus found. The circumstance that they were not called could, with this qualification, be considered by the jury. The verdict was right.

The judgment and order should therefore be affirmed, with costs.

(174 App. Div. 310)

FLEISCHMAN v. FURGUESON.

(Supreme Court, Appellate Division, Second Department. July 28, 1916.) 1. HUSBAND AND WIFE 279(4)—SEPARATION CONtracts-ConsTRUCTION— SUPPORT.

Under a contract between husband and wife on separation, by which she was to receive $8 per week during his life, and on his death, in lieu thereof, such interest in his estate as provided by the intestate laws of Pennsylvania, as though there had been no agreement, and the husband was to have such interest in her estate as provided for in intestacy by the laws of New York, as if there were no agreement, either could do with his property as he chose during life, but neither could dispose of it on death, so as to exclude the other from the statutory intestate interest. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 1058; Dec. Dig. 279(4).]

2. HUSBAND AND WIFE 278(5)—SEPARATION CONTRACTS-VALIDITY-CON

SIDERATION.

Such contract was supported by the consideration of mutual promises. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 1052; Dec. Dig. 278(5).]

3. HUSBAND AND WIFE 278(2)-SEPARATION CONTRACTS-VALIDITY-PUBLIC POLICY.

Such contract was not against public policy.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 1046; Dec. Dig. 278(2).]

Appeal from Special Term, Kings County.

Suit by Charles F. Fleischman against Cornelius Furgueson, executor of Marion F. Fleischman, deceased. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before JENKS, P. J., and THOMAS, CARR, STAPLETON, and PUTNAM, JJ.

A. F. Van Thun, Jr., of Brooklyn, for appellant.

Thomas A. McKennell, of New York City (Alfred H. Appell, of New York City, on the brief), for respondent.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

THOMAS, J. [1-3] The action is to enforce a contract made between husband and wife, Fleischman by name. The controversy centers about subdivision 7. The wife died, leaving an estate of some $9,000, and the trial court has decided that the husband is entitled to it. The parties separated in January, 1910, and made the agreement in November. Each had a lawyer. Counsel for the husband drew a contract with subdivisions 6 and 7. Counsel for the wife objected to it and proffered sections 6 and 7 as they now are, which brought into the contract the provisions under discussion.

It is the decision that husband and wife each promised the other that the survivor should have such interest in the estate of the 'other as accrues in case of intestacy; but the wife's taking was to be measured by the laws of Pennsylvania, and the husband's sharing by the laws of New York. The appellant's contention is that the agreement means only that the fact that the parties were separated under agreement that he should pay her $8 per week should not be deemed such willful neglect to provide for her, or such desertion as under the laws of Pennsylvania would work a forfeiture of his interest in her estate if she died intestate, and that the object was to preserve the status quo that would obtain in case either died intestate.

* * *

The reason suggested for the provision for the husband does not account for the similar provision for the wife. The wife got the stipulation as her lawyer deemed best for her, viz., that the $8 payment should cease on the husband's death, as it would, and that the wife, in lieu of it, should "receive such interest in" his estate "as provided by the intestate laws of Pennsylvania as though there had not been an agreement." The words "as though there had not been an agreement" may have been inserted from some conception of necessity or caution, but do not seem to have any use. However, I think that we should consider the suggestion that, irrespective of its necessity, the wife's lawyer feared that if the husband died intestate it might be asserted that the agreement would operate to exclude the widow from sharing in the estate. By such interpretation the agreement would mean that, in case the husband died intestate, the wife should take the normal share of a widow in his property.

But that would be a slight assurance to the woman, whose weekly payment of $8 per week would cease, and I cannot believe that her lawyer took so much pains for no useful purpose. It seems more probable that he sought to have her "receive such interest" as the intestacy laws provide. The husband could do what he would do with his property while he lived, but at death he could not exclude her, as his probable feelings towards her would influence him to do. But the wife could hardly expect a bargain that would insure her an interest in her husband's estate in case of his earlier death, and yet exclude him from participating in her estate if he survived her. So it was provided that he should "have such interest in" her estate "as provided for in intestacy under the laws of the state of New York, as if no agreement had existed and the parties hereto lived together, except the same be absolved by proceedings in divorce." The stip

ulation is that the husband, surviving, shall receive an interest in his wife's estate. What interest? Such as the intestacy laws provide. But appellant says that, if the wife wills it all away, the law gave him nothing, and that it was intended so to leave it. That construction makes the agreement impotent. She willed him $5, and the rest of the property elsewhere. It chances that she left only personalty, and in the absence of children he takes it all; but, had she left real estate, he would have taken. nothing. I conclude that the essence of the contract was that the parties could do what they would with their properties, but that neither could exclude the other from taking what the law would give in case of intestacy. The mutual promises furnished the consideration, and the agreement was not against public policy.

The judgment should be affirmed, but without costs. All concur.

(174 App. Div. 265)

REILLY V. STEINHART.

(Supreme Court, Appellate Division, First Department. July 10, 1916.) 1 VENDOR AND PURCHASER 302-OPTIONS-LIABILITY FOR OPTION PRICETITLE OF Vendor.

The vendor under an option contract cannot recover the option price, where the evidence shows that he did not own the property and was not in a position to give title at any time during the life of the option.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 845-850; Dec. Dig. 302.]

2. APPEAL AND ERROR

1039(5)—REVIEW-SUFFICIENCY OF PLEADINGS.

A judgment for plaintiff will not be affirmed, on the ground that defendant's answer, alleging want of consideration, was insufficient, where defendant was precluded from amending by the ruling of the court that such answer was sufficient.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4078; Dec. Dig. 1039(5).]

3. VENDOR AND PURCHASER 315(3)—OPTIONS-TITLE OF VENDOR-RECOVERY OF OPTION PRICE.

Where plaintiff contracted for the construction of an electric railway in Cuba, and in consideration thereof was to receive shares of stock and proceeds of the sale of bonds, the latter to be used only in building the road, and thereafter sold to defendant an option to purchase the concession, lands, stocks, bonds, etc., evidence held insufficient to show that at any time during the life of the option plaintiff had any right to transfer the property to the option holder, such as would justify the recovery of the price.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 931; Dec. Dig. 315(3).]

4. VENDOR AND PURCHASER 18(4)-OPTION-RESCISSION.

Under an option whereby vendor agreed to sell a valid existing concession for the construction of an electric railroad in Cuba, together with stocks, bonds, lands, etc., and such concession had been forfeited, or was subject to forfeiture, for failure to expend 10 per cent. of the capital stock of such railroad on construction during the first two years, there was such partial failure of consideration for the sale as would, under For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

the Cuban law, justify defendant in refusing to accept title, and constitute a defense to an action for the unpaid balance on the option.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 23; Dec. Dig. 18(4).]

On remittitur from the Court of Appeals for further hearing. 217 N. Y. 549, 112 N. E. 468; 218 N. Y. 112 N. E. 749. Reversed

and remanded.

For former opinion, see 161 App. Div. 242, 146 N. Y. Supp. 534. The complaint contains two counts. The first is to recover the sum of $35,000 and interest on a verbal option alleged to have been given by the plaintiff to the defendant, and the second is to recover a like amount on an option in writing subsequently executed and delivered by the plaintiff to the defendant on the 22d day of January, 1907. On the trial the plaintiff offered evidence under both counts; but the court ruled that the verbal option was invalid under our statute of frauds, and submitted the case to the jury under the second count only. The plaintiff recovered a verdict for the full amount claimed under the option in writing. That option is as follows:

"Whereas, I am the full owner of a concession heretofore granted me to build and construct a railway in the province of Santa Clara, known as the Cienfuegos, Palmira & Cruces Electric Railway & Power Company; and "Whereas, there have been issued and are now deposited with Messrs. Opmann & Co., of Havana, Cuba, bonds of the said Railway & Power Company amounting to $2,000,000 United States currency and 19,470 shares of stock, par value each $100; and

"Whereas, on or about the 22d day of April, 1906, I verbally gave an option to Frank Steinhart, of Havana, to purchase all rights, the concession, lands purchased pertaining to the said Railway & Power Company:

"Now, therefore, for and in consideration of the sum of $15,000 to me in hand paid, the receipt whereof is hereby acknowledged, and an obligation on the part of the said Frank Steinhart to pay on April 22, 1907, a further sum of $35,000 in United States currency, I hereby confirm the said verbal option in writing, said option to continue until the said 22d day of April, 1907, up to which date and period the said Frank Steinhart may purchase from me all those matters heretofore mentioned, namely, the concession, lands, rights, bonds, stock, etc., meaning and indicating anything and everything pertaining to the said Railway & Power Company, for the sum of $1,500,000 United States currency, it being understood that the amount of $50,000 to be paid as option money, $15,000 of which have already been paid, shall be applied as part of the purchase money, if said purchase is completed before the expiration of this option, subject, however, that the said Frank Steinhart shall recognize a contract made with C. C. Vermulle for doing the engineer work at the rate of 6 per cent. on the stock for construction, and also a contract with Jose Antonio Frias for furnishing the necessary electric power required for lighting the city of Cienfuegos and other municipalities on the route of the said railway, as well as other electric power which may be required, on the condition that the said Frank Steinhart or his successors shall be paid at the rate of $40 per horse power per annum. Hugh J. Reilly."

Articles 1261 and 1265 of the Code of Civil Procedure of Cuba, with respect to contracts, provide as follows:

"Art. 1261. There is no contract unless the following requisites exist: 1. Consent of the contracting parties. 2. A definite object which may be the subject of the contract. 3. The cause [consideration] for the obligation which may be established."

"Art. 1265. Consent given by error, under violence, by intimidation or deceit shall be void."

The defendant appealed to this court from a judgment entered upon the verdict, from an order denying his motion for a new trial, and from an order granting an extra allowance. The other facts material to a decision of the appeal on this hearing are stated in the opinion.

Argued before CLARKE, P. J., and LAUGHLIN, DOWLING, PAGE, and DAVIS, JJ.

Morgan J. O'Brien, of New York City (David P. Davis, on the brief), for appellant.

William C. Rosenberg, of New York City (Henry Wetherhorn and Charles Grossman, both of New York City, on the brief), for respond

ent.

LAUGHLIN, J. On the former hearing this court reversed the judgment and order and dismissed the complaint on the ground that the option in writing was invalid, owing to the fact that it was not "protocolized" or made a public instrument before a notary, as required by the law of the Republic of Cuba, where the property which was the subject of the option was (161 App. Div. 242, 146 N. Y. Supp. 534); and in our order of reversal it was recited that the reversal was on questions of law and fact, but that the only question of fact considered was whether the option was valid under the Cuban law, and that we did not deem it necessary to consider other facts, or to pass upon the weight of the evidence. The Court of Appeals held, in effect, that the option, which was accepted by appellant by the partial payment thereunder, was valid in so far as its validity depended upon the form and manner in which it was executed, and that an action could be maintained thereon in Cuba to "protocolize" it in order to afford a basis for enforcing specific performance thereof in the courts there, and reversed our decision, evidently upon the theory that the question depended upon the construction of the Cuban law which was a question of law (Bank of China v. Morse, 168 N. Y. 458, 61 N. E. 774, 56 L. R. A. 139, 85 Am. St. Rep. 876), but remitted the case to this court for a consideration of the questions of fact not passed upon (217 N. Y. 549, 112 N. E. 468).

The defendant thereupon moved to amend the remittitur, in order that this court might consider other questions of law argued, but not decided, here, as well as the other questions of fact. In an affidavit on that motion his attorney set forth nine other points, which were presented, but not considered by this court, and stated that he wished to have them considered on the rehearing in this court. The Court of Appeals denied the motion, and in a memorandum opinion held that the defendant, having seen fit to attempt to sustain our decision on the single point on which it was made, waived his right to have it sustained on any other question of law, or to have a reargument in that court, and therefore was not entitled to have this court pass upon other questions of law, as that might result in taking the case to the Court of Appeals piecemeal. The Court of Appeals, however, in the opinion denying the motion to amend the remittitur, stated that the "chief questions" which defendant desired to argue "involved in reality a consider