Horne v. Terry — 46 N.Y. St. Rep. 881

Majority

p. 881

George E. Horne, Trustee, Resp’t, v. Arthur Terry, App’it.

(New York Common Pleas, General Term,

Filed June 6, 1892.)

Headnote

1. Appeal—Case.

Where the case on appeal from the general term of the city court does not contain the judgment of the general term, such judgment cannot be

p. 882

affirmed, although the appeal is without merit, but the appeal must be dismissed.

2. Husband and wife—Action on trust agreement—Evidence.

In an action on a trust agreement by which defendant agreed to pay certain sums to his wife to be used, for her separate and unquestioned use, in consideration of a withdrawal of an action for separation, the question as to whether the wife’s denial of her husband’s conjugal rights d. prives her of the right to his support is not pertinent, and evidence in relation thereto is inadmissible.

Appeal from an alleged judgment of the general term of the city court, affirming a judgment of that court in favor of the' plaintiff upon a verdict directed by the court.

Action to recover moneys claimed to have accrued to plaintiff, as trustee for defendant’s wife, pursuant to an agreement with the defendant, whereby the latter promised to pay a weekly sum in consideration of the mutual withdrawal of a matrimonial litigation at the time pending between husband and wife.

E. R. Terry, for app’lt; T. C. Campbell, for resp’t.

The question whether or not the wife’s denial of her husband’s conjugal rights deprives her of the right to his support was in no sense pertinent to the case at bar, since the weekly sum sought to be recovered in this action, and which defendant had agreed to paji in consideration of his wife’s withdrawal of her suit for a separation and the abandonment of the .alimony awarded her, was to be applied by her to such uses as she saw fit, and not to be accepted in discharge of his obligation to provide for her support; hence, the trial justice properly refused to receive the evidence excluded, and the appeal from the judgment is without merit.

The absence of the judgment of affirmance of the general term of the court below from the case submitted to us on this appeal, however, precludes us from an affirmance of that judgment. Rule 2 of the general term rules of this court provides that the rules of the court of appeals governing appeals to that court shall apply to appeals from the city court to this court; and rule 5 of the court of appeals requires that the case on appeal shall contain a copy of the return of the clerk of the court from which the appeal is taken. If, therefore, we assume that the case submitted complies with the rules above mentioned there is nothing before us for review, since pursuant to § 3191 of the Code of Civil Procedure we may only entertain appeals from the city. court when they are taken from “ actual determinations ” of that court made at a general term thereof.

On the other hand, if it is urged that the case submitted is defective, in that it does not contain a copy of the clerk’s return and omits the judgment of affirmance upon which our authority to proceed is dependent, then consistency with the rules established for the orderly transaction of judicial business and the avoidance of any appearance of having affirmed a spurious judgment require that this appeal be dismissed. Bastable v. Syracuse, 72 N. Y., 64 .

Appeal dismissed, with costs.

Daly, Ch. J., concurs.