Allen v. Affleck
New York Court of Common Pleas
Appeal from a judgment of the general term of the Marine Court of the City of New York, reversing a judgment of that court entered upon findings by the court on a trial without a jury. The action was brought to recover for a breach by the defendant of an agreement made between him, his wife, and the plaintiff as trustee for the wife, which was thus alleged in the complaint.
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Appeal from a judgment of the general term of the Marine Court of the City of New York, reversing a judgment of that court entered upon findings by the court on a trial without a jury. The action was brought to recover for a breach by the defendant of an agreement made between him, his wife, and the plaintiff as trustee for the wife, which was thus alleged in the complaint. “1. That on the first day of March, A. D. 1819, the defendant made and entered into an agreement with Ida £. Affleck, his wife, and the plaintiff as trustee, whereby, among other things, the defendant, in consideration of…
1Opinion of the Court
Charles P. Daly, Chief Justice.
This case was submitted on the pleadings; and where this is done, everything stated in the complaint, or set up in answer to it, may be taken as facts agreed upon between the parties. An agreement of separation between husband and wife is of no effect, unless the parties are separated when the agreement is entered into, or they separate afterwards, in pursuance of the agreement (Carson v. Murray, 3 Paige, 483 ; Nurse v. Craig, 2 Bos. & Pul. 148).
It is not directly averred in the complaint that a separation had taken place, in pursuance of the agreement, but it…
2Cases cited5 opinions
- Carson v. MurrayNew York Court of Chancery · 1831
- People ex rel. Barry v. MerceinNew York Court of Chancery · 1839
- Broadwell v. GetmanNew York Supreme Court · 1846
- Leavitt v. . PalmerNew York Court of Appeals · 1849
- Calkins v. LongNew York Supreme Court · 1855
3Cited by11 opinions
- Winter v. . WinterNew York Court of Appeals · 1908
- Clark, Trustee, Etc. v. . FosdickNew York Court of Appeals · 1889
- Atherton v. AthertonNew York Supreme Court · 1894
- Buckel v. SussThe Superior Court of the City of New York and Buffalo · 1892
- Clark v. FosdickNew York Court of Common Pleas · 1886
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