Schnurr v. Quinn — 83 A.D. 70

Majority

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Tilly Schnurr, Appellant, v. Alexander Quinn, Respondent.

Headnote

Agreement by the father of an illegitimate child to pay certain money to the mother thereof—it is violated by her inducing the institution of bastardy proceedings against him.

The reputed father of an illegitimate child made an agreement with the mother ' thereof by which he agreed to pay her “for the period of two years from the ( date hereof, the sum of five (5) dollars a week payable weekly for the support of the said Tilly Schnurr and that of the child with which she is now pregnant, and further hereby agrees if said child shall live longer to suitably provide for ’ its support, and further to pay the expenses of the approaching confinement. : And the said second party agrees not to make any further claim of any hind ; upon said first party provided he faithfully complies with and performs the aforesaid agreement on his part.”

The mother of the child simultaneously executed to the reputed father a general release which was conditioned upon the faithful performance of the agreement by him.

Before the expiration of the two years mentioned in the agreement, and while the reputed father was not in default thereunder, the mother induced the proper poor authorities to institute bastardy proceedings against the reputed father. These proceedings were compromised by the poor authorities, upon ' the payment, by the reputed father, of the sum of §300. The poor authori- . ties executed a release to the reputed father of all liability to the county and ■ paid the §800 over to the mother of the child.

Held, that, by procuring the institution of the bastardy proceedings, the mother of the child had violated that provision of the agreement by which she undertook not to make “any further claim of any kind ” against the reputed father, • and that she could not thereafter maintain any action against him upon the agreement.

Appeal by the plaintiff, Tilly Schnurr, from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of the county of Kings oír the 21st day of October, 1897, upon the dismissal of the complaint by direction of the.court after a trial before the court and a jury, and also from an order denying the plaintiff’s motion for a new trial made upon the minutes.

A. L. Martin, for the appellant.

William J. Courtney, for the respondent.

This action was brought by the mother of an illegitimate child, of which the defendant is alleged to he the father, to recover $500 under a written agreement whereby the father agreed to provide for the support of the child.

The material parts of the agreement are as follows: “ Now, this agreement witnesseth: That the said Alexander Quinn, the said party of the first part, and in consideration of the sum of one (1) dollar to him in hand paid, and the agreement of said second party herein contained, does hereby agree to and hereby hinds himself to pay to the said second party in person at her residence, for the period of two years from the date hereof, the sum of five (5) dollars a week payable weekly for the support of the said Tilly Schnurr and that of the child with which she is now pregnant, and further hereby agrees if said child shall live longer to suitably provide for its support, and further to pay the expenses of the approaching confinement-. And the said second party agrees not to make any further claim of any kind upon said first party provided he faithfully complies with and performs the aforesaid agreements on his part.” The plaintiff is the party of the second part referred to in this agreement. ' She did not sign the instrument, but simultaneously executed and delivered to the defendant a release of all claims on her behalf, arising out of his acquaintance and intimacy with her, provided that the aforesaid agreement should be faithfully carried out by him.

The defendant made the weekly payments of five dollars provided for in the agreement for a period of two years from the date thereof. Before the expiration of the two years, however, and while he was still making the payments, plaintiff applied to the commissioners of charities and corrections of Kings county and had the defendant arrested in bastardy proceedings. Those proceedings resulted in a compromise and settlement of the charge under the statute applicable to such cases, and the defendant paid $300 to the commissioners, and received from them a release from all liability to the county of Kings on account of the support of the plaintiff’s child.

The ground upon which the complaint in this action' appeal’s to have been dismissed in the County Court was that, by instituting the

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proceedings before the charity commissioners, the plaintiff had violated that part of the agreement above quoted whereby she undertook not to make any further claim of any kind upon the defendant provided he fulfilled the agreement on his part.

The agreement provided for two things: First, the payment by the defendant of five dollars a week for a period of two years for the support of the plaintiff and of the child with which she was then pregnant; and, in the second place, for the suitable support of the child thereafter if it should live longer than two years. It contained the additional provision, to which reference has already been made, that the mother should not make any further claim of any kind upon the alleged father if he faithfully complied with and performed the agreement on his part. Although the contract was not signed by the mother, her acceptance of it with this undertaking in it bound her to perform such undertaking; and I am of opinion that she violated the agreement in this respect by the institution of the bastardy proceedings before the charity commissioners prior to the lapse of the two years and while the defendant was still actually complying with his obligations under the contract.

The correctness of this view depends, of course, upon the meaning of the expression “ claim of any kind ” in the agreement. I think this expression was sufficiently broad to include the bastardy proceedings which were set in motion by the plaintiff’s agency. Indeed, it is difficult to see what other claim could have been in contemplation inasmuch as there is no suggestion in the record that the pregnancy of the plaintiff was due to seduction or any other act which could be the basis of a claim against the defendant by the plaintiff except under the Bastardy Law.

It is true that in a strictly legal sense the bastardy proceeding against the father is not instituted by the mother, but is maintainable only by the officials designated by the statute on the subject. (People ex rel. Board of Police v. Shulman, 8 App. Div. 514 .) Revertheless, the action of the mother in the present case was the procuring cause of the proceeding, and must be fairly deemed the assertion of a claim within the meaning of the agreement between the parties. While directly prosecuted for the benefit of the county to free it from liability, it was also indirectly beneficial to- her, inasmuch as she received the entire sum of money collected therein

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by the commissioners. As the father of a bastard child is under no legal liability to support it, except so far as such liability is imposed by statute, and as, in the present case, the father’s obligation to support the child under his contract with the mother was released by her violation of the contract, the learned county judge was right in dismissing the complaint.

The judgment should be affirmed.

Goodrich, P. J., Hirschberg, J enks and Hooker, JJ., concurred.

Judgment of the County Court of Kings county affirmed, with costs.