Jones v. Diederich

3 Daly 177

• Court: New York Court of Common Pleas
• Decided: November 15, 1869
• Status: Published

Opinion

Brady, J.

The mortgage was executed by the plaintiff under the apprehension that her husband would be taken to prison by virtue of the process issued against him on the application of the defendant, Caroline Diederich. This fact appears from the papers read on behalf of the defendant. The truthfulness of the cause of action on which such process was obtained is denied by the plaintiff’s husband, and although the evidence shows that he may have admitted his guilt, yet for the purposes of such an action as this it is sufficient if there exist any doubt of the validity of the claim for the payment of which the mortgage was made. The appeal was made to the plaintiff by her husband to execute the mortgage and' she refused, but when it was said that her husband must get ready to depart, her resolution was overcome and she yielded to what seemed to be a necessity, and through fear that her husband would be imprisoned. I am quite aware that this case is in some respects not as strong as similar cases in which courts have interposed to shield a woman from acts of a kindred character (see Eadie v. Shumer, 26 N. Y., p. 1), but the general rule is that the appropriation of property by a wife to save her husband from imprisonment must be obtained under circumstances which leave no doubt either of the validity of the claim against her husband, or the full consciousness on her part of the effect of her own deed. The injunction must therefore be continued until the hearing of this case. This decision is made without prejudice to the defendant’s right to apply for further security, if the undertaking' on which the injunction was granted is deemed to be insufficient.

Ordered accordingly.