(Amended by L. 1915, ch. 422, L. 1917, ch. 245 and L. 1921, ch. 317, in effect April 22, 1921.)

§ 24. Effect of marriage of parents of illegitimates.

Statute legitimizing children whose parents have intermarried; child born to parties thereafter married but whose marriage is annulled for duress does not come within statute.-Chapter 531 of the Laws of 1895, provided that "all illegitimate children whose parents have heretofore intermarried shall be considered legitimate for all purposes," refers to a marriage, not to some supposed contract, not in fact made, and where a marriage has been annulled by the courts for duress and force a child born to the parties before the marriage does not come within the act. Matter of Moncrief (1923), 235 N. Y. 390, revg. 203 App. Div. 893.

Section cited.-Lewis v. State of New York (1920), 112 Misc. 667, 183 N. Y. Supp. 653, revd. 197 App. Div. 712, 189 N. Y. Supp. 560.

§ 51. Powers of married woman.

Stipulation not to prosecute husband for default in payment of alimony.-A stipu lation entered into between a wife and her husband who was in jail under contempt proceedings for failure to pay alimony decreed against him in a judgment of separation, whereby she agreed to take less than the amount due and to reduce weekly payments, and not to prosecute proceedings in the future to punish him for contempt on his default, is void for want of consideration. Said stipulation is void also, as it offends against section 51 of the Domestic Relations Law, providing in effect, that a wife cannot contract with her husband to relieve him from liability for her support, since the stipulation contracted away the only effective method whereby the wife could secure moneys for her support. Said stipulation is void also as against public policy which demands that a wife shall not be permitted improvidently to relieve the husband of his duty of support. Glickman v. Glickman (1920), 194 App. Div. 100, 185 N. Y. Supp. 421.

A separation agreement may by its terms release the interest of a wife in the property of her husband. Matter of Hagen (1922), 119 Misc. 770.

A husband's obligation to support his wife exists notwithstanding any separation agreement or any payment made thereunder to his wife. Harding v. Harding (1921), 203 App. Div. 721, 197 N. Y. Supp. 78.

A separation agreement executed by a husband and wife while they are maintaining marital relations is void as against public policy. In an action by a wife against the executors of her husband to recover monthly instalments under a separation agreement the correct inference to be drawn from the agreement is that the parties were living together at the time the agreement was executed, since it provides as follows: "Whereas, diverse disputes and unhappy differences have arisen between the said party of the first part and said wife, for which reason they have consented and agreed, and hereby do consent and agree, to live separate and apart from each other during their natural life," and further covenants that it shall be lawful for the wife to live separate and apart from her husband. A contract between the husband and third persons which was executed about four years before the separation agreement, whereby the third persons agreed to furnish rooms and board for the wife in part consideration for the rent of the husband's farm, did not establish that the parties were living apart at the time of the separation agreement. Nor was such fact established by the testimony of a witness whose testimony apparently was based entirely upon hear

say.

The separation agreement provided that the husband would pay to the

§ 51.

Actions by and against executor.

trustee a stated sum per year so long as she furnished board and lodging for his wife in her family, and in case anything should occur whereby the trustee could not furnish a home for the wife then the husband would pay a stated sum per month to the wife. A recovery based on the non-performance of the obligation to pay the wife a monthly sum cannot be had as there was no proof that the trustee ever refused to furnish a home to the wife or that circumstances arose which made it impossible for her to furnish it. Dowie v. DeWinter (1922), 203 App. Div. 302, 197 N. Y. Supp. 54.

May not by contract alter or dissolve marital relation; duty of husband to support wife; measure of support; inequitable and unjust separation agreement void. Neither husband nor wife are empowered by contract, oral or written, to alter or dissolve the marital relation. In the public interest the state has ever deemed it essential that certain obligations should attach to a marriage contract, amongst which is the duty of a husband to support his wife, and the husband is without power to enter into any agreement or contract which will relieve him of such obligation. The matter in which the wife is to be supported by the husband in a discharge of the obligation imposed upon him is not dependent upon any whim or caprice on his part, neither is he permitted to arbitrarily determine the measure of support which he shall provide for his wife. The law requires that the measure of support shall be commensurate with the manner in which the parties have lived and a consideration of the ability of the husband to furnish means of support. Where in an action brought by a wife to set aside a separation agreement, a conclusion of the trial justice, that taking into consideration the circumstances of the defendant, the provision for the support and maintenance of plaintiff is unfair, inequitable and unjust and that the agreement is void, should be sustained, notwithstanding that the Appellate Division has found as a fact that the parties were actually separated at the time the agreement was made and have not lived together since. Tirrell v. Tirrell (1921), 232 N. Y. 224, 133 N. E. 569, revg. 190 App. Div. 463, 180 N. Y. Supp. 49.

Agreement by father of husband to pay wife certain sum annually for life in consideration of discontinuing action for divorce, and returning to husband; consideration; public policy; husband's father bound to discharge the obligation assumed even after death of his son; representatives of husband's estate not necessary parties to action.-Plaintiff discontinued an action for divorce against her husband and resumed her relations with him upon an agreement by the husband and his father, defendant's testator, to pay her a certain sum annually so long as she lived. This action is brought to recover the sum remaining unpaid under this agreement, which plaintiff alleges she fully performed. Held, that the complaint is sufficient in law on its face; that the agreement is not against public policy; that it rests on a valid consideration; that the allegation of non-payment is sufficient; that the defendant was bound to discharge the obligation which he assumed, which is not affected by his death, and that plaintiff was not bound to join the representatives of the husband's estate as defendants. Rodgers v. Rodgers (1920), 229 N. Y. 255, 128 N. E. 117, revg. 188 App. Div. 965, 176 N. Y. Supp. 919.

A release executed by a wife to her husband of her dower and other rights which she had or might have in and to his property did not release to him or to his heirs or assigns any of the claims or rights to his property that she has under section 2670 of the Code of Civil Procedure. Matter of Shulenburg (1921), 114 Misc. 155, 187 N. Y. Supp. 251.

A separation agreement relieving the husband from obligation to pay alimony or support his wife is invalid under this section and a motion to vacate a judgment

Insurance of husband's life.

§ 52.

by default in a separation action will be denied where the defendant desires to interpose such an agreement as a defense. Mabbett v. Mabbett (1921), 197 App. Div. 654, 189 N. Y. Supp. 205.

When wife not carrying on separate business or occupation within meaning of this section. Smith v. Burhyte (1921), 197 App. Div. 725, 189 N. Y. Supp. 728. Wife cannot sue husband for negligence.-A wife cannot maintain an action against her husband to recover for personal injuries sustained by reason of his negligent operation of a car in which before their marriage she was riding at his invitation. The fact that the cause of action accrued and the action was commenced when the parties were separate entities does not change the situation. Newton v. Weber (1922), 119 Misc. 240, 196 N. Y. Supp. 113.

§ 52. Insurance of husband's life.

Application.-The provisions of this section relating to the rights of wives in policies written upon the lives of their husbands relate to policies in which the contract of the insurance company is with the wife. Hilton v. New York Life Ins. Co. (1920), 113 Misc. 74, 184 N. Y. Supp. 2.

When policies not part of estate. The law is well settled that where insurance policies are made payable to the decedent's widow neither the policies nor the proceeds thereof form any part of the decedent's estate. Wagner v. Thieriot (1922), 203 App. Div. 757, 762, 197 N. Y. Supp. 560.

Policy of insurance on debtor's life payable to his wife held by receiver in supplementary proceedings as asset; provision in policy that insured can elect to take cash surrender value; when receiver can compel insurance company to pay to him the cash surrender value of the policy; when wife has no vested interest.—Where a policy of life insurance is payable upon the death of the insured to his wife with the right of the insured to change the beneficiary and to elect to receive the cash surrender value of the policy, subject to its provisions, the wife has no vested interest in the policy. The receiver in proceedings supplementary to an execution issued upon a judgment duly docketed against the insured is entitled to make the election in behalf of the judgment debtor and to receive the cash surrender of the policy. Where, therefore, it appears that all premiums have been paid and that the policy, which is now in the hands of said receiver, has not lapsed and that both the debtor and his wife refuse to request the insurance company to pay the cash surrender value of the policy to said receiver, the court upon motion of the judgment creditor made pursuant to section 793 of the Civil Practice Act, will grant an order directing the payment of the cash surrender value of the policy to the receiver who under rule 109 of the Rules of Civil Practice upon the undisputed facts would be entitled to judgment in an action brought by him against the insurance company. Ecker v. Myer (1922), 118 Misc. 356, 194 N. Y. Supp. 320.

263

Rights of creditors of deceased to insurance; premiums in excess of $500 per annum; administratrix who is beneficiary cannot be examined under section of Surrogate's Court Act as to insurance.-Upon the accounting of an administratrix of the estate of her husband she may not be examined under section 263 of the Surrogate's Court Act concerning life insurance money paid to her as beneficiary of policies on the life of her husband. Such insurance, even though purchased by the husband with premiums in excess of $500, is no part of his estate and although the excess is primarily liable for his debts the rights of creditors under section 52 of the Domestic Relations Law must be enforced by an action to establish the lien, and in such action the administratrix may be examined. Matter of Davis (1923), 120 Misc. 457, 198 N. Y. Supp. 669.

VOL. XXIII-23

§ 55. Contract of married woman not to bind husband.

I. 1923, ch. 235.

Where in an action brought by wife against husband to recover from the latter the sums which the former claims to have expended out of her separate estate in discharge of his obligation to provide her with the necessaries of life suitable to her condition, the husband set up as a defense a foreign decree of divorce in his favor on the ground of extreme cruelty, in which action wife had appeared and defended by denying the allegation of cruelty and setting up abandonment and nonsupport as a defense, and the husband, in the divorce suit, alleged and the court found that accusations by the wife of unchastity and the use by her of insulting and angry words had seriously affected the husband's health and threatened permanently to impair it, it may not be said as matter of law that the facts pleaded and proved in the foreign action would not justify a decree of separation in this state even though no physical violence or threats thereof was shown. The parties had an opportunity therein to litigate and did litigate the very question in issue in this action, viz.: Was the husband justified in leaving his wife? The plaintiff is, therefore, bound by the foreign decree. Pearson v. Pearson (1920), 230 N. Y. 141, 129 N. E. 349, affg. 187 App. Div. 645, 176 N. Y. Supp. 626.

When husband not liable for necessaries.-If a husband for the misconduct of his wife lawfully separates himself from her, he is not chargeable for necessaries furnished to her. Pearson v. Pearson (1920), 230 N. Y. 141, 129 N. E. 349, affg. 187 App. Div. 645, 176 N. Y. Supp. 626.

§ 57. Right of action by or against married woman for torts.

Wife cannot sue husband to recover damages for personal injuries.-In the absence of statute a wife cannot sue her husband to recover damages for personal injuries alleged to have been sustained through his negligence. Perlman V. Brooklyn City R. R. Co. (1921), 117 Misc. 353, 191 N. Y. Supp. 891.

A wife can maintain an action against another woman for crimnal conversation with her husband. Oppenheim v. Kridel (1923), 236 N. Y. -, 204 App. Div. 305, 198 N. Y. Supp. 157.

§ 60. Married woman's right of action for wages.

Section cited.-Schafer v. Rose-Gorman-Rose (1920), 192 App. Div. 860, 183 N. Y. Supp. 161.

§ 70. Habeas corpus for child detained by parent.-A husband or wife, being an inhabitant of this state, living in a state of separation, without being divorced, who has a minor child, may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award the natural guardianship, charge and custody of such child to either parent for such time, under such regulations and restrictions. and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order. In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make award accordingly. (Amended by L. 1923, ch. 235, in effect Sept. 1, 1923.)

This section does not confer power upon the court to direct a husband to pay

L. 1923, ch. 706.

Guardians; appointment; duties.

§§ 81-87.

a certain sum of money to his wife for the support of their child, nor has the court inherent power so to do. A motion to punish a husband living separate and apart from his wife, as for contempt in failing to obey that part of an order made under this section of the Domestic Relations Law which required the payment by him to her of money for the support of their child, will be denied on the ground that the court was without jurisdiction to make such direction. ex rel. Prior v. Prior (1920), 112 Misc. 208, 182 N. Y. Supp. 577.

People

Remedy for education and maintenance of children.-Where a wife's complaint in an action for separation has been dismissed on the merits, a remedy for provision for education and maintenance of the children is under this section, and not by motion to amend the judgment under section 1771 of the Code of Civil Procedure. Lesser v. Lesser (1918), 114 Misc. 701, 188 N. Y. Supp. 12.

Custody of child given to wife under separation agreement requiring husband to support and maintain child; in habeas corpus proceedings by wife to recover custody of child court cannot direct husband to pay stated amount for maintenance of child.—In habeas corpus proceedings instituted by a wife to recover the possession of her child from her husband, the court is without power to make an order directing the husband to pay to his wife a stated amount per week for the support, education and maintenance of the child, where it appears that the custody of the child was Surrendered to the wife under a separation agreement obligating the husband to pay to the wife a certain amount for the support and maintenance of the child. People ex rel. Klee v. Klee (1922), 202 App. Div. 592, 195 N. Y. Supp. 778.

S 81. Appointment of guardians by parent.

The words "custody and tuition" as used in this section includes guardianship of the estate as well as of the person. Matter of Baumann (1920), 113 Misc. 630, 185 N. Y. Supp. 288.

Application of section does not relate exclusively to testamentary guardians. People ex rel. DeLaney v. Mt. St. Joseph's Academy (1921), 198 App. Div. 75, 189 N. Y. Supp. 775, reargument denied, 198 App. Div. 280, 190 N. Y. Supp. 289. Husband does not have absolute control over children; children placed in educational institution by father against will of mother will be returned to joint custody.A husband and wife, under section 81 of the Domestic Relations Law, are joint guardians of their children with equal powers, rights and duties, and the husband does not have the absolute control over them. Accordingly, where, during the absence of the mother from home, her husband placed three girls of the age of nine years in a school without the consent of the mother, she, in consideration of the welfare of the children, is entitled to have them returned to the joint custody of herself and her husband. People ex rel. DeLaney v. Mt. St. Joseph's Academy (1921), 198 App. Div. 75, 189 N. Y. Supp. 775, reargu ment denied, 198 App. Div. 280, 190 N. Y. Supp. 289.

§ 83. Duties and liabilities of general guardians.

Repairs to real estate. In the absence of rents and profits available for such purpose the general guardian of an infant has no right to bind the corpus of his estate for the expense of repairs to real estate, unless authorized by the court.

Feuring

v. Siewers (1923), 120 Misc. 720.

§ 86. Guardianship of indigent children by incorporated orphan asylums. (Repealed by L. 1923, ch. 706. in effect July 1, 1923.)

§ 87. Record of children to be kept by orphan asylums.-(Repealed by L. 1923, ch. 706, in effect July 1, 1923.)