La Moutte v. Guaranty & Surety Co.

Headnote

La Moutte v. Title Guaranty & Surety Co., 165 App. Div. 573 , affirmed.

La Moutte v. Francke, 177 App. Div. 933 , affirmed.

Appeal in first above-entitled action from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 19, 1915, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury. Appeal in second above-entitled action from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 28, 1917, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury. Plaintiff and defendant Jane Francke were husband and'wife, having two children of their marriage. A decree of separation had been made by the Supreme Court in New York county on March 30, 1908, by which the custody of the children was awarded to the wife. Subsequently, on July 27, 1911, the parties • were divorced by a judgment entered in the District Court of Idaho. Thereafter the individual defendant married and assumed her present name. On July 8,1911, plaintiff and defendant Mrs. Francke, desiring to change the situation in relation to the custody of their two children, entered into two agreements designated by them respectively “ Contract A ” and “ Contract B,” delivered to each other bonds for $5,000 for the faithful performance of the agreements on their parts, respectively, and stipulated for and procured an amendment of the decree of March 30, 1908, so as to provide for an equal division of the custody of the two children, in conformity with the provisions of “ Contract A ” and “ Contract B.” The

actions are brought on the bond, and the breach of the contract relied upon by plaintiff is the conceded fact that -in the summer of 1912 defendant Mrs. Francke took the two children upon a trip to Europe, being absent from the state about fifteen weeks,.. without notice, “ Contract B ” prohibiting either party from taking the children from the state of New York and “ Contract A ” providing for notice of any change of residence.