Opinion
Argued December 14, 1882
Decided February 9, 1883
Frederick Lansing for appellant.
Levi H. Brown for respondent.
On the trial the defendant waived all the defenses set up in his answer, except that of want of consideration for the note in suit, and that the contract of which it was a part was against public policy, and void. Consequently no other points are before us on this appeal.
We think the consideration for the note was ample. The plaintiff had instituted an action against the defendant for divorce a vinculo, on the ground of adultery, and had examined one witness conditionally, who had testified to the acts charged. She was in a condition to apply to the court for alimony and counsel fees, and had she prosecuted her action to its termination, might have compelled the payment of permanent alimony, and the costs and expenses of the action. In consideration of the giving of this note, she discontinued this action, and furnished to the defendant a stipulation, signed by herself and her attorneys, by which they stipulated that it be discontinued, without costs. She also condoned the adultery charged, and returned to live with the defendant. By this arrangement the defendant not only got rid of the pending action, and the payment of costs and counsel fees therein, and of temporary alimony, but by the condonation the plaintiff precluded herself from bringing a new action, founded upon the adultery of which she had given proof. These were substantial benefits to the defendant, abundantly sufficient to support the note which he gave to her father, for her use.
We are unable to perceive on what ground the arrangement can be regarded as against public policy. It tended to restore peace and harmony between husband and wife, and renew their conjugal relations. Agreements to separate have been regarded as against public policy, but it would be strangely inconsistent if the same policy should condemn agreements to restore marital relations, after a temporary separation had taken place. While the law favors the settlement of controversies between all other persons, it would be a curious policy which should forbid husband and wife to compromise their differences, or preclude either from forgiving a wrong committed by the other.
It is objected by the appellant that the settlement was not a good consideration, because it was not final, and the case of Kirby v. Kirby (1 Paige, 565) is referred to, in which it was held that a settlement of a divorce suit might be made between husband and wife, but that such a settlement was subject to the supervision of the court. It is enough to say that the settlement between the present parties has stood, and the defendant has received the benefit of it. No application appears ever to have been made to set it aside, nor is any thing unfair or fraudulent alleged, which should call for the interposition of the court to disturb it.
The order of the General Term should be affirmed, and judgment absolute rendered against the appellant on his stipulation.
All concur.
Order affirmed and judgment accordingly.