#### George W. Allen, Appellant, *against*Stephen D. Affleck, Respondent.

(Decided June 5th, 1882.)

An agreement between a husband and wife and a trustee for the wife provided for a separation of the husband and wife during life, the wife to have the custody of their children, the husband to pay to the trustee a certain sum weekly for the support and maintenance of the wife and children in discharge of the husband's liability therefor, and the trustee to indemnify the husband against any other charge or expense therefor and against all debts thereafter contracted by the wife on her own account or on account of the children. The husband and wife did, after-wards, and pursuant to the agreement, live separate; and the provisions of the agreement were for a time performed, until, the husband having offered to support the wife and children if they would reside with him, and the wife having refused the offer, he thereupon ceased to make the stipulated payment to the trustee. *Held,*that the agreement was valid as to the wife, even if the provision in respect of the custody of the children was invalid; that the husband was liable to the trustee for the sup*510port of the wife and children, so far as the agreement had in good faith been executed, notwithstanding the wife’s refusal of his offer; and that the trustee might recover from him the amount stipulated in the agreement.

Appeal from a judgment of the general term of the Marine Court of the City of New York, reversing a judgment of that court entered upon findings by the court on a trial without a jury.

The action was brought to recover for a breach by the defendant of an agreement made between him, his wife, and the plaintiff as trustee for the wife, which was thus alleged in the complaint.

“1. That on the first day of March, A. D. 1819, the defendant made and entered into an agreement with Ida £. Affleck, his wife, and the plaintiff as trustee, whereby, among other things, the defendant, in consideration of the promises and agreements hereinafter mentioned, made by this plaintiff as such trustee, promised and agreed to pay to said trustee, this plaintiff, for the support and maintenance of his said wife and their two children, Irene May Affleck and Elmer W. Affleck, the sum of $12 a week, payable on Monday of each and every week, and to be in full discharge for all liability for the support and maintenance of his said wife and children.

“ 2. That the plaintiff as such trustee as aforesaid, in consideration of the promises and agreements above mentioned made by the said defendant, among other things covenants and agrees to and with the said defendant to indemnify him and bear him harmless of and from all debts of his said wife, contracted or that may hereafter be contracted by her or on her account, or on account of their two children, and that the said defendant shall not be put to any charge or expense for the support and maintenance of his said wife or the said two children or either of them than the said sum of $12 per week, so to be paid by said defendant, as more fully and at large will appear by said agreement, a copy of which is hereto *511annexed marked *“*A,” and which is made a part of this complaint.

“ 3. That the plaintiff as such trustee, as aforesaid, has fully-performed all the conditions of said agreement on his part, but the defendant has neglected and refused to comply with the terms of said agreement on his part, and has not paid the $12 per week as he agreed to do, although the same has often been demanded; but on the contrary thereof, the defendant is now justly indebted to this plaintiff as such trustee, as aforesaid, and in the manner aforesaid, in the sum of $432 for thirty-six weeks at $12 per week, which the defendant has not paid.”

The substance of the agreement referred to in the foregoing complaint as annexed thereto is also stated in the opinion.

The defendant’s answer was as follows:

“ 1. That he admits the first and second paragraphs of the complaint.

“2. That he denies upon information and belief that the plaintiff has fully performed all the conditions of the agreement as alleged in the third paragraph, and he admits that he has not paid the sum of $432 as therein alleged, but denies that he is indebted to the plaintiff in any sum whatever.

“ As separate and distinct defenses he alleges :

*“ 3.*That the contract referred to in the complaint, a copy of which is annexed thereto, is illegal and void, because the same is contrary to public policy.

“4. That Ida E. Affleck, the wife of the defendant, and a party to said contract, violated the letter and spirit of this contract, by alienating the affections of defendant’s children from him, and refusing to permit defendant’s son to visit the defendant as by said contract provided.

“ 5. That the defendant, in the month of January, 1880, offered to support said Ida E. Affleck and the said children, if they would reside with the defendant, but that said Ida E. Affleck refused said offer, and still refuses to live and cohabit with the defendant.

“ 6. That since the execution of said contract the said Ida E. Affleck commenced an action in the Supreme Court of the *512State of New York, for a limited divorce on the ground of cruel and inhuman treatment, and further alleging as one of the reasons for said action, that defendant refused to support her, and has abandoned her, and asks judgment for the custody of said children, and that a reasonable provision be made for the support of herself and children out of the defendant’s property, and that issue was joined in said action, and' the same is now pending in the court aforesaid.

*“*7. That thereafter the said Ida E. Affleck, by her counsel, applied to said court for a weekly sum of twenty dollars as alimony during the pendency of the action aforesaid, which application was denied, and that the bringing of said action and the application for alimony was made with the consent and knowledge of the plaintiff herein.

“ 8. That by the said contract, the control, custody and care and education of defendant’s children were surrendered to his said wife, and the sum agreed to be paid by the said contract was in part for their support and maintenance, and that such surrender of his children was illegal and void, as against public policy, and that before the commencement of this action the defendant has commenced a habeas corpus proceeding for the possession of his said children, and which proceeding is now pending.

*“*9. The defendant by answering herein and pleading the defens ethereto, does not waive the illegality of said eon tract or any of its parts, and he reserves the right to himself to object to the sufficiency of the complaint at the trial hereof.”

At the trial the parties consented that a jury be waived, and that the case be decided from the pleadings without formal evidence, and the following requests were made by the counsel for the defendant:

“ 1. That if the complaint did not state facts sufficient to constitute a cause of action, to render judgment for the defendant.

“ 2. That if the contract upon which the action was based was void, because it contained covenants contrary to public policy, to render judgment for the defendant.

*513“ 3. That if the complaint did state facts sufficient to constitute a cause of action, to render judgment for the plaintiff.”

The justice found for the plaintiff, and upon his findings judgment in favor of the plaintiff was entered for the amount claimed. From the judgment the defendent appealed to the general term of the Marine Court, which reversed the judgment, and ordered judgment absolute for the defendant. From this decision the plaintiff appealed to this court.

*H. T.*& *J. W.*Cleveland, for appellant.

*A. Simis, Jr.,*for respondent.

Charles P. Daly, Chief Justice.

This case was submitted on the pleadings; and where this is done, everything stated in the complaint, or set up in answer to it, may be taken as facts agreed upon between the parties. An agreement of separation between husband and wife is of no effect, unless the parties are separated when the agreement is entered into, or they separate afterwards, in pursuance of the agreement *(Carson*v. *Murray, 3*Paige, 483 ; *Nurse*v. Craig, 2 Bos. *&*Pul. 148).

It is not directly averred in the complaint that a separation had taken place, in pursuance of the agreement, but it is inferable from what appears, when the whole of the pleading is taken together. It is averred in the complaint, that the defendant agreed to pay to the trustee $12 a week for the support and maintenance of the defendant’s wife and two children ; that the plaintiff agreed that the defendant should not be put to any charge or expense for the support and maintenance of the wife and children, beyond this $12 a week ; and it appears by the agreement annexed to the complaint, that the wife was to take the $12 a week for the support and maintenance of herself and the two children; that the trustee agreed that she would fulfill that engagement, and that he would hold the husband harmless from any expense but the payment of the $12 a week ; that he would idemnify *•*and save him harmless from all debts that the wife might' *514thereafter contract, either on her own account, or on account of the children ; and if the husband was compelled to pay any such debts, that he, the trustee, would repay the sum to him with all damage or loss he might sustain thereby. It is averred that the trustee fully performed all the conditions on his part; which is equivalent to a statement that the defendant was put to no charge or expense for the support of the wife and children beyond the $12 a week, so far as it may have been paid, which was presumably up to January, 1880. It appears by the answer that the defendant offered, in January, 1880, to support his wife and children, if they would reside with him ; and that the wife refused his offer, and still refuses to live and cohabit with him ; which shows that they were living separate and apart, when this offer was made, and continued so to live apart, up to the time of the commencement of the action. The claim was for 36 weeks, at $12 a week, which is about the time that elapsed from the period when this offer was made, and the commencement of the suit. The recovery was"§432 with interest from the 30th of September, which would be 36 weeks, or from about the middle of January to the 30th of September, 1880. It therefore appears that before the commencement of the period for which this claim of $432 was made, the husband and wife were then living separate from each other, and continued to do so, until the suit was brought, which was all that was requisite in this action to show that a separation had taken place in pursuance of the agreement.

It is well settled that an agreement like this between the husband, the wife and a trustee, for a separation during life is valid and effectual, both at law and in equity *(Calkins*v. *Levy,*22 Barb. 106, 107 ; *Carson*v. *Murray,*3 Paige, 483 ; *Selling*v. Crowley, 2 Vern. 386). And as respects the wife, it would not be invalidated, although the provision in the agreement in respect to the children might be void *(Leavitt*v. *Palmer, 3*N. Y. 19, 37; Parsons on Contracts, 428); nor,'if we assume, upon the authorities cited by the appellant, that the provision respecting the children was one that the court would not enforce, being void as against public policy, does it *515necessarily follow that the defendant is not answerable to the trustee for the support of the wife and children, so far as the agreement has in good faith been executed. In *Vansittart*v. *Vansittart*(2 De Gex *&*J. 255), where such a stipulation in respect to the support of the children in an agreement for a separation was held to be void as against public policy, a distinction was made between enforcing the specific performance of an agreement for a separation, containing such a provision, and questions that may arise where such agreements have been executed in whole or in part. It was said in that case that the father has not only a right to his children, but duties to discharge towards them, and that he should not be allowed to fetter and abandon his parental power to the extent that he might do, if agreements of this character were sustained.

But where, under such an agreement, the husband has voluntarily left the care and custody of the children to the wife, and they have been supported by the wife and the trustee, under a stipulation on the part of the husband that he would pay $12 a week to the trustee for the support of them and the wife, there is no reason legal or equitable why, in such a case, the trustee should not recover from him that amount as money expended with his consent and for his benefit. An agreement may be void, but if a party has derived benefit under it by a part performance, he must pay for what he has received, and the stipulated amount which the trustee was to receive and the husband was to pay may be taken as the measure of damages *(King*v. Brown, 2 Hill, 485 ; *Lockwood*v. Barnes, 3 Hill, 128; *Nones*v. *Homer,*2 Hilton, 116; *Broadwell*v. *Getman,*2 Denio, 87; *Mavor*v. *Pine,*2 Car. *&*P. 91; 3 Bing. 285).

If this provision in the agreement was void, and the defendant had afterwards demanded the custody of the children of the wife and the trustee, and they had refused to give them up, he could have had them restored to his custody by a writ of habeas corpus, or if he did not resort to that writ it may be that he would not thereafter be liable to pay the trustee the $12 a week, as they would then be supported by the wife and the trustee against his consent. All, however, that appears *516by the pleadings is that he offered to support the wife and children if they would reside with him ; and that the wife refused. The wife was under no obligation to do so, as the agreement, so far as it related to her right to live separate and apart, was a valid one. It was not an offer to take the children *without her,*and in no sense can it be regarded as a demand of them alone from her and the trustee. If he wanted the children without her, it was an easy matter simply to so demand them, and if the demand was refused, to have them delivered' up to him, by the summary remedy of a writ of habeas corpus. It amounted simply to this—as the wife would not come with the children and live with him, he allowed them to remain with her, and to be supported as they were thereafter by her and the trustee.

This view of the case is taken upon the assumption that the provision in respect to the children is invalid, but it is by no means a settled question that agreements of that nature are absolutely void. In Massachusetts, Maine and New Hampshire, it would seem from the adjudged cases that they are liot *(Wodell*v. *Coggeshall, 2*Metc. 89 ; *State*v. *Smith,*6 Maine, 402 ; *State*v. *Barrett,*45 N. H. 15).

Judge Cowen and Chancellor Walworth, in *The People*v. *Mercein,*(3 Hill, 410, 8 Paige, 67, 68,) rvere of the opinion that such agreements are void, but the point has never been expressly adjudged in this state, for it Avas not essential to the ultimate decision of the court in that case, as the agreement for a separation there was not for a separation during life but for a temporary period, a kind of agreement which it has been held is not binding, and which either party is at liberty, at any time, to put an end to *(Calkins v. Long,*22 Barb. 106), and which Barry, the father, in that case did by demanding and recovering the custody of his child.

It is not, in my opinion, necessary to decide whether the agreement in this case was invalid or not; I take occasion, however, to say that I do not see upon what ground it should be deemed A-oid as being against public policy. This instrument declares that divers disputes, unhappy differences and divisions had arisen betAveen the husband and wife, for which *517reason they consented to live separate and apart during their lives. That the furniture in the house 79 High Street in Brooklyn was set apart for the use of the wife and children, but was to remain the property of the husband, and was not to be disposed of by the wife. That the husband should pay the trustee $12 a week for the support of the wife and children, which was fixed upon after taking into consideration the value of certain real property which had been conveyed, by the husband to the wife. That she was to have the custody and control of the two children and of their education, which was given to her at her request, and against the wish and desire of the husband. That one of the children, the son, should spend his Saturdays with the father; and in addition spend every fourth Sunday at the father’s place of business or residence, wherever that might be. And that the other child (the daughter) was to be allowed the privilege of visiting and seeing the father whenever he might wish or desire her to do so; and also that the daughter might visit him from time to time as she might desire; and that in case either of the children should be so ill as to be confined to the house, that the husband should be informed of the fact and have the right and privilege of visiting them or either of them during such sickness; and that, *at all other reasonable*times, *he might visit them.*

I see nothing in this agreement that is against public policy. So far from indicating any intention, on the part of the husband, to abandon his parental duties, its provisions are carefully drawn to secure, as far- as was compatible under the unhappy circumstances of a separation like this, that intercourse between parent and child, which is essential to the parental influence, and also, the exercise on his part, of that care and watchfulness in the event of sickness, which grows out of the paternal anxiety and is the duty of a parent. The care, custody and education of the children are left to the wife; but it may well have been that that was the best arrangement to make; and being so, was assented to by him, reluctantly and against his wishes.

I fully agree that it is against public policy to uphold *518agreements by parents, the design or effect of which is to fetter or abandon the parental duties. But it is now well settled that parties may lawfully enter into agreements for a separation during life. Judge Cowen, in *The People*v. *Mercein (supra),*calls them *“*a kind of divorce which the courts cannot very well, at this day, gainsay.” This being so, it follows, as incidental to such a separation, that some disposition must be made of the children, if they have any. They cannot be brought up under the mutual superintendence of father and mother as before, and must be left in the custody of one of the separating parties. The law generally leaves the custody of children with the father ; but where the custody of them comes in question, as it usually does, upon writs of habeas corpus, it may bo denied both to the father and the mother, and given to other relations, or to strangers, the rule being that that disposition is to be made which is best for the child (Kent’s Com. 205 ; Schouler’s Domestic Relations, 338). Upon such a separation, the father may be of the opinion that it is best for the interest of the children, that the care *of them*should be left to the mother, and it by no means follows, that because it is so provided in the agreement, that he has abandoned his parental duty.

It appears to me that the parties have, upon their separation, arranged the delicate matter of the care and bringing up of the children, as well as the law could do it for them ; and where there is nothing more objectionable than appears in the provisions in this agreement, that the custody and bringing up of the children had better be left as the parties have arranged it, unless we go back, and hold, as Lord Eldon puts it in *St. John*v. *St. John*(10 Vesey, 530), that the rule upon the policy of the law is that the contract shall be indissoluble, even by the sentence of the law, that people should understand that after etnering into the sacred contract of marriage, they should feel it to be their mutual interest to improve their tempers.” It might be very well if the law. could compel this, but it cannot, the temper being, in many cases, an infirmity of nature which is beyond the power of the party to control. If a husband and wife cannot live together, except by *519a life that is intolerable to both, the law should not be used as an instrument to coerce them to do so, a conviction that has slowly gained ground, and gradually led to a recognition of the validity of agreements of this nature for a separation.

I do not propose to pursue this question, which would involve a somewhat critical examination of the cases in which it has been considered, farther than to remark in respect to the two principal ones, that, in *The People*v. *Mercein*(supra), the agreement of Barry, the husband, was that he would relinquish to his wife all his right, accruing at the time of the agreement, and at any future period, to their daughter, provided the wife would require him to do so; and in *Vansittart*v. *Vansittart (supra),*it was provided in the agreement, that neither of the two elder sons should be sent to any school without the written consent of both husband and wife (Per Knight Bruce, J., p. 59); in both of which there was more ground for assuming an abandonment of the parental duty, than there is in this case.

This contract was executed, both as respects the wife and the children, up to the period for which the $12 a week was recovered by the trustee. J udge McAdam was therefore right in giving judgment for that amount, and in my opinion, the judgment of the general term should be reversed, and that of the special term affirmed.

Van Brunt and Beach, JJ., concurred.

Judgment of general term reversed, and judgment of special term affirmed.