Tucker v. Dudley

113 A.D. 500, 99 N.Y.S. 339, 1906 N.Y. App. Div. LEXIS 1470

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 1906
• Status: Published

Opinion

Gaynor, J.:

This plaintiff had two actions pending, viz., this present one for cram. con. by the defendant with his wife, and another by his wife against him for an absolute divorce, in which he also prayed for an absolute divorce against her for her adultery with this defendant. He delivered to the attorney for the defendant in this present action a consent of discontinuance and a general release of this caxise of action, in escrow, howevér, the written terms of the escrow being that the attorney should hold the said papers xxntil the'trial and determination of the action for divorce, and in the event of this plaintiff’s wife getting a judgment therein, she was to give kiin a general release for all alimony awarded her by such judgment," whereupon the said attorney was to deliver the said papers out of escrow to this" defendant. "And these wei’e the final words of the terras: “Unless all of the above conditions coxne to pass, then the said general release and order of discontinuance to be returned to me.” »

The plain meaning of this was that if his wife prevailed in the divorce action and got judgment against him for alimony this plaintiff would be willing to release this defendant provided this plaintiff’s wife released him from the payment of the alimony. . The consideration for releasing this defendant from, the cause of action for critn.. con. was to be the release of this plaintiff by his wife from the; alimony judgment if she obtained it, ,

But instead of the wife prevailing in the divorce action this plaintiff prevailed against her and got judgment of absolute divorce. 'As the papprs were held in escrow to he delivered only on the event of his wife getting judgment of alimony against him, and releasing the same, they were" unlawfully- delivered out of escrow for the reason that-the .event never happened. Mor,eove.v,-the consideration which the plaintiff was to get for his'generál release to. Dudley never came into being, -and was not and cannot be givqn. The „fact that he prevailed in the divorce, action cannot he substituted 'for the consideration,. That was not the agreement. His freedom from, liability for alimony did not come to him by a release from his. wife; lie'won it by trial in court and it is his. ' He lias'got what he Was looking to get through his agveeittent with this defendant if his wife had prevailed over him in the divorce action, hut he did riot get it through that agreement. This defendant never rendered the. • consideration which he was to ■ render in order to get the general release,

- The judgment should be reversed. ■

Jenks, Rich and Miller, JJ., concurred ; Hooker, J., dissented.

Judgment reversed and new trial granted, costs to abide the event. . ,