First Department, February, 1922.

[Vol. 200

LILLY WINBURN and HAROLD NAGEL, Respondents, v. JESSE WINBURN, Appellant.

First Department, February 10, 1922.

Husband and wife separation equity — failure of husband to perform separation agreement and threat to make enforcement of performance impossible court cannot grant equitable relief by way of injunction, requiring deposit or bond and impressing lien on fund — such relief obtained only in divorce or separation action.

Although a husband fails to perform a separation agreement and threatens to make enforcement of performance thereof impossible, a court of equity has no authority to grant relief to the wife by way of injunction, requiring a deposit or a bond and impressing a lien on funds in possession of the husband.

It seems, that relief of such a nature can be obtained only in an action for divorce or separation.

APPEAL by the defendant, Jesse Winburn, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of August, 1921, denying defendant's motion for judgment on the pleadings, consisting of a complaint and a demurrer, and also from an order entered in said clerk's office on or about the same day granting plaintiffs' motion for judgment on the pleadings. Max D. Steuer [Irving D. Lipkowitz of counsel], for the appellant. Levy & Nemerov [Nathaniel Levy of counsel], for the respondents. SMITH, J.:

The complaint alleges that the plaintiff Lilly Winburn at all times thereinafter mentioned was and now is the lawful wedded wife of Jesse Winburn, the defendant; that on the 9th day of May, 1919, while said plaintiff and defendant were living apart an agreement was entered into which is annexed to the complaint. This agreement is made between the defendant and the plaintiff Lilly Winburn and her coplaintiff Nagel, as party of the third part, and is an ordinary separation agreement. The plaintiff Winburn released her dower in the defendant's property and the defendant agreed to pay to the plaintiff $9,600 per annum in equal monthly installments beginning on the 1st day of June, 1919; to deliver to the plaintiff Winburn certain personal property and by his last will and testament to give to the plaintiff the sum of $100,000 in the event the plaintiff should survive him, and further, that if the defendant Winburn should obtain a decree of absolute divorce, or if the plaintiff Winburn should remarry, the provision for maintenance of the party of the second part should cease and terminate. The plaintiff alleges that payments for her support

App. Div. 26]

First Department, February, 1922.

were duly paid down to and including the 31st of December, 1920, and that no payments have been made since that time, although duly demanded; that the defendant was at the time of the making of the said agreement the sole owner of the stock of the New York City Car Advertising Company of the estimated value of $500,000, and was the owner of stocks, bonds and other securities of the estimated value of $1,000,000. It is then alleged that since the execution of said agreement the defendant had stated that he regretted having made such agreement and that he would do everything in his power to alienate and dispose of and secrete all of his property and assets to cheat and defraud his wife and that he would not carry out and perform the terms of said agreement, and that the plaintiff Winburn would not be able to enforce the same and would not receive any further moneys from him for maintenance and support, and that he would likewise secrete and dispose of his business and all his property in such a way that the same could not be reached by the plaintiff, so as to make it utterly impossible for the plaintiff to collect and secure the said sum of $100,000 provided to be given by his will, and that he would effectually cheat and defraud his wife, the plaintiff Winburn, and deprive her of all maintenance and support and deprive her of all participation of any part of his property.

The complaint further alleges that the plaintiff has fully performed her covenants in the agreement and there is no adequate remedy at law, and the prayer for relief then is as follows:

First. That the defendant be compelled to deposit with a Trust Company to be named by the court a sufficient sum of money or deliver to the plaintiffs a surety company bond which wil guarantee the payment to one of the plaintiffs herein, his wife, of the sum of One hundred thousand ($100,000) dollars upon his death, and likewise the income of which will provide the sum of Ninety-six hundred ($9,600) dollars per year during his life time, for the sole maintenance and support of his wife, one of the plaintiffs herein.

"Second. That an injunction be decreed herein ordering, directing, restraining and enjoining the defendant and all other persons from selling, secreting or otherwise disposing of all of his assets and property, either directly or indirectly.

"Third. That the said decree shall likewise impress a lien upon the said fund for the benefit of his wife, one of the plaintiffs herein, to the said extent and for the said purpose, and for such other and further relief as may be just and proper in the premises, besides the costs of this action."

No authorities are cited and I am unable to find any in this

First Department, February, 1922.

[Vol. 200

State or elsewhere justifying the granting of the relief prayed for in the complaint. By section 1772 of the Code of Civil Procedure, where a judgment has been entered in an action for divorce or separation the judgment may provide alimony for the support of the wife and require the defendant to give security for the payment thereof. (See Civil Practice Act, § 1171.) This right to compel security must be given as an incident to a judgment or order of the court providing for the payment of such alimony. There is no other provision of law for the requirement to give security for payment of moneys to become thereafter due upon any contract. It is contended that relationship of the parties as husband and wife gives to the wife an additional right under her contract than would have an ordinary contract creditor. This right of the wife to support from her husband is zealously guarded in law. Not so, however, the right to a possible legacy from the husband. But this additional right to security claimed by the wife is given in an action for divorce or separation wherein the right may be secured. In this complaint no facts are alleged which show a right in the wife to a judgment in such an action. The husband is required by law to support his wife at his home, or elsewhere only if he has given her cause to leave him. No such cause is here shown. The contract made is no evidence thereof. It may have been made to satisfy her wish or whim without the existence of any cause on his part which would support an action for separation or divorce. It would be going a good ways to hold that such an agreement not shown to have been induced by the wrong of the husband would give to the wife all the rights which are given to her after a judgment has been pronounced that she was entitled to live separate from her husband and still claim his support. If she could obtain these additional rights she must obtain them in an action for divorce or separation in which action she may be given such security for her support as the law adjudges to be her right.

The order should, therefore, be reversed, without costs, and the motion should be granted.

CLARKE, P. J., LAUGHLIN, MERRELL and GREENBAUM, JJ.,

concur.

Order reversed, without costs, plaintiffs' motion denied and defendant's motion granted.

App. Div. 29]

First Department, February, 1922.

JOHN HOGAN, Respondent, v. PRODUCERS' DEVELOPMENT COMPANY, a Corporation, and HARVEY H. HEVENOR, Appellants, Impleaded with THEODORE K. MCCARTHY and Others, Defendants.

First Department, February 10, 1922.

Malicious prosecution - defense of release under seal-when reply denying consideration for release and alleging that it was obtained by fraudulent concealment insufficient to show release ineffective consideration for release under seal conclusively presumed.

In an action for malicious prosecution, a reply denying that a release under seal pleaded by the defendants was upon consideration, and further alleging that it was obtained by a fraudulent concealment by the defendants that the malicious prosecution was the result of a conspiracy between the said defendants and other defendants, but which does not allege that the plaintiff relied upon the concealment in executing the release, or that it was induced thereby, states no facts rendering the release ineffective.

Although the common-law rule as to the effect of a seal was changed by section 840 of the Code of Civil Procedure to the extent of making the seal presumptive evidence only of consideration in case of an executory agreement, the consideration for a release under seal, not being an executory instrument, is still conclusively presumed as under the common law.

APPEAL by the defendants, Producers' Development Company and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of May, 1921, denying their motion for judgment on the pleadings.

Gerard Roberts [Robert P. Stephenson of counsel], for the appellants. James A. Turley, for the respondent.

SMITH, J.:

The action was brought for damages for malicious prosecution. The defendants' answer asserted a release upon consideration and under seal. To that answer a reply was served denying that the release was upon consideration and further alleging that the release was obtained by a fraudulent concealment by the said defendants that the malicious prosecution for which the action was brought was the result of a conspiracy between the said defendants and other defendants sued.

By section 840 of the Code of Civil Procedure the common-law rule as to the effect of a seal was changed to the extent of making the seal presumptive evidence only of a consideration in case of an executory agreement. The consideration for a release under seal, however, not being an executory instrument, is still conclusively presumed as under the common law. (Stiebel v. Grosberg, 202 N. Y. 266.) As far as the release is challenged by the reply for

First Department, February, 1922.

[Vol. 200 concealment by the defendants of the fact that the prosecution was the result of a conspiracy, such a defense to the release is unavailing because there was no duty on the part of the defendants to reveal the fact that other parties have conspired in the wrong of malicious prosecution, for which damages are sought. Without any duty to reveal that fact, there can be no fraud by the defendants in not informing the plaintiff thereof. It is not claimed that there were any false representations, nor is it alleged in the reply that the plaintiff relied upon that concealment in executing the release, or that the release was induced thereby. The reply, therefore, states no facts which would render ineffective the release pleaded in the defendants' answer, and the motion should have been granted. The order should, therefore, be reversed, with ten dollars costs and disbursements, and the defendants' motion for judgment upon the pleadings granted, with ten dollars costs.

CLARKE, P. J., LAUGHLIN, MERRELL and GREENBAUM, JJ., concur. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

MARTIN LEVEY, Respondent, v. JOHN BARTON PAYNE, DirectorGeneral of Railroads, as Agent, under Section 206 of the Transportation Act,* Appellant, Impleaded with NEW YORK, ONTARIO AND WESTERN RAILWAY COMPANY, Defendant.

First Department, February 10, 1922.

Trial place of trial action against railroad company for personal injuries — court has no authority of its own motion to change venue from county wherein neither party resided to county of plaintiff's residence defendant entitled to change of venue to county where accident happened - evidence justifying change of venue for convenience of witnesses railroad has residence in county where it operates. In an action brought in New York county by a resident of Kings county to recover damages for personal injuries claimed to have been sustained by reason of the alleged negligence of the defendant in operating its railroad in Sullivan county, the court had no authority, of its own motion and without demand of either party, to order the place of trial changed from New York county to Kings county. The place of trial should have been changed to Sullivan county on the ground that that county was the proper county for the trial of the action, for it is well settled that where the plaintiff in a negligence action lays the venue in a county of which he is not a resident, the defendant is entitled, as a matter of right, to have the venue changed to the county of his residence, irrespective of the convenience of witnesses.

It seems, however, that the defendant made out a proper case which would justify a change of venue to Sullivan county for the convenience of witnesses. That a railroad company has a residence in the county wherein its railroad operates is well settled.

* See 41 U. S. Stat. at Large, 461, § 206; Pres. Proc. March 11, 1920, and May 14, 1920, 41 id. 1789, 1793, 1794.- [REP.