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Smith v. Smith

43 N.Y. Super. Ct. 140 11 Jones & S. 140 Court N.Y. Super. Ct. Decision date 1878-01-07 English

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p. 140
FREDERICK P. SMITH, Plaintiff and Respondent, v. JOSEPHINE S. SMITH, Defendant and Appellant.

Headnote

APPEAL FROM ORDER.
The consideration of the general term must be confined to the papers that the order states were read on the motion.
If in fact papers not recited in the order were read on the motion, the defendant before appealing should have applied to the court to have the order amended in that respect.
ALIMONY.
The party entitled to the same payable in installments, by
p. 141
order of the court, can release and discharge her claim therefor, in full and in advance, for a stipulated sum ; and where such a release had been made, and subsequently the party making the same moved the court to set it aside, and on the hearing of the motion, no allegations were made of fraudulent practice, or artifice to induce the party to execute the release, nor facts appeared to impeach the honesty and good faith of the transaction, the court should deny the motion, and refuse to set aside the release.
Decided January 7, 1878.
Before Curtis, Ch. J., and Vah Vorst and Freedman, JJ.
The action was for a dissolution of the marriage bond. On May 13, 1876, an order was' made at the special term, on the defendant’s application, that the defendant have sixty dollars to be paid to her or her counsel for the defense of this action, and that she be allowed the sum of §3.50 per week, as alimony herein.
On June 26, 1876, the defendant signed and delivered to the plaintiff a receipt and release in writing-in the words following:
Superior Court of the City of New York.
Frederick P. Smith
y.
Josephihe S. Smith.
Received New York, June 26,1876, from Frederick P. Smith, the plaintiff herein, one hundred dollars, the same being- paid to me in advance and at my request, and is in full of all alimony to which I am or may at any time hereafter become or be entitled to under the order of this court in this action bearing date 13th day of May, A. D. 1876 ; and in consideration thereof I
p. 142
hereby release and discharge said plaintiff from any further payment of alimony under said order or otherwise ; and I stipulate and agree that no application shall be made by me, or on my behalf, at any time hereafter, for alimony or expenses in this action, and that an order maybe entered in this action at any time by plaintiff discharging him from all further payments thereof.
Josephine S. Smith.
A motion was afterwards made by the defendant at special term for an order setting aside the release, which was denied.
From this last order this appeal is taken.
Hal Bell, counsel, for appellant.
W. E. Birdsall, counsel, for respondent.

—The order from which this appeal is taken, recites that the papers read on the motion to set aside the release, were the petition of the defendant’s attorney, notice of motion, and the affidavit of John S. Woodford. We must be confined in considering this appeal to those papers.

If other papers were in fact used on the motion, not mentioned in the order, before appealing the defendant should have applied to have the order in that respect amended.

But in the form in which the matter comes before us, we are to assume that the order correctly states the papers used on the motion.

There is no allegation that the defendant was induced by any fraudulent practice or artifice to execute this release.

In the absence of such allegations the presumption is that it was voluntarily executed, and that it was for the defendant’s advantage to receive the sum of $100

p. 143
at the time in advance, and in full, of all alimony to which she might at any time become entitled, under the order of May 13, 1876.

At the time this money was paid a small amount of alimony onl'y had accrued. It might be that from death, or other legal cause, thereafter arising, the defendant’s claim might suddenly terminate. The allowance was only temporary, and it might be that on final judgment she would not be entitled to it.

It was competent for her to agree to take a gross sum in lieu of all claims for alimony under the order.

As there is no fact to impeach the honesty or good faith of the transaction, the judge before whom the order appealed from was made, was justified in refusing to set the release aside.

A further construction of the release may, however, raise the question whether or not anything was released except alimony provided for in. the original order.

The rule indicated in Jackson v. Stockton ( 1 Cow. 122 ), that the portion of the release in respect to “ expenses in the action,” is qualified by the recital with respect to “alimony,” in the former part of the release.

The order appealed from is affirmed without costs, and without prejudice to the defendant’s right to apply by motion for the payment of such expenses in the action as she may be entitled to, in order that she may bring the action to a close.

Curtis, Ch. J., and Freedman, J., concurred.

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