Muth v. Wuest

Appellate Division of the Supreme Court of New York

Muth v. Wuest

76 A.D. 332

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 1, 1902

StatusPublished

Cited by24 cases

This text of 76 A.D. 332 (Muth v. Wuest) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Muth v. Wuest, 76 A.D. 332 (N.Y. Ct. App. 1902).

Pincite

Opinion

Woodward, J.:

The plaintiff, as trustee for Lulu E. Wuest, brings this action to recover a sum of money alleged to be due from the defendant to the plaintiff under an agreement of separation, executed by the plaintiff as trustee and by the defendant and his wife on April 30, 1900. By the terms of this agreement the defendant promised to pay the plaintiff twenty-five dollars per week for the support and maintenance of the defendant’s wife and two children. Mrs. Wuest was accorded sole custody and control of the children, the defendant being privileged to see' them at stated times and under certain •circumstances. There is no question as to the validity of this agreement, and the only question involved here is whether Mrs. Wuest, in taking the children to Europe during a period of six months, has violated the provisions of the contract.

Upon the trial of the action the learned justice presiding in the Municipal Court found that there was a violation of the condition •of the contract which permitted the defendant to see the children •once in each week during the term of the contract. This conclusion is fully supported by the evidence, there being no dispute that the children were taken away and were absent during a period of •six months. There was an attempt on the part of the plaintiff to show that the absence of Mrs. Wuest was due to ill-health, and that it was necessary to her welfare, as well as for that of the oldest child, that she should visit Europe. The evidence is, however, far from conclusive, and under the rule laid down in Duryea v. Bliven (122 N. Y. 567) the determination of the court, equivalent to a verdict of a jury, would seem to dispose of this case.

[334]*334We have examined the exceptions nrged by the appellant and find no reversible error.

.The judgment appealed from should be affirmed, with costs.

All concurred.

Judgment of the Municipal Court affirmed, with costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Woodward, J.:

The plaintiff, as trustee for Lulu E. Wuest, brings this action to recover a sum of money alleged to be due from the defendant to the plaintiff under an agreement of separation, executed by the plaintiff as trustee and by the defendant and his wife on April 30, 1900. By the terms of this agreement the defendant promised to pay the plaintiff twenty-five dollars per week for the support and maintenance of the defendant’s wife and two children. Mrs. Wuest was accorded sole custody and control of the children, the defendant being privileged to see' them at stated times and under certain •circumstances. There is no question as to the validity of this agreement, and the only question involved here is whether Mrs. Wuest, in taking the children to Europe during a period of six months, has violated the provisions of the contract.

Upon the trial of the action the learned justice presiding in the Municipal Court found that there was a violation of the condition •of the contract which permitted the defendant to see the children •once in each week during the term of the contract. This conclusion is fully supported by the evidence, there being no dispute that the children were taken away and were absent during a period of •six months. There was an attempt on the part of the plaintiff to show that the absence of Mrs. Wuest was due to ill-health, and that it was necessary to her welfare, as well as for that of the oldest child, that she should visit Europe. The evidence is, however, far from conclusive, and under the rule laid down in Duryea v. Bliven (122 N. Y. 567) the determination of the court, equivalent to a verdict of a jury, would seem to dispose of this case.

[334]*334We have examined the exceptions nrged by the appellant and find no reversible error.

.The judgment appealed from should be affirmed, with costs.

All concurred.

Judgment of the Municipal Court affirmed, with costs.

Cite This Page — Counsel Stack

Bluebook (online)

76 A.D. 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/muth-v-wuest-nyappdiv-1902.

Opinion

Related

Cite This Page — Counsel Stack