Wright v. Wright , 59 Barb. 505 ( 1871 )

Cardozo, J.

I think the judgment in this case should be affirmed. The note was given in consideration of a promise to marry. So we- must, in support of the judgment, intend that the referee found, there being evidence which would support that conclusion. After having, on direct examination, testified generally that the consideration of the note was a marriage contract between her and the defendant, the plaintiff, on cross-examination, further said that in the month of February, the defendant told her if she would be his wife he would give her his note for |5000, and she “ agreed to have him at that time”— agreed that she-“ would marry him.” I. think, therefore, that the note was given in consideration of her promise to marry the defendant, and that therefore the note was made upon and for a sufficient and valuable consideration.

Undoubtedly this contract (the note) would, at common law, have been extinguished by the marriage; but that rule was changed by the statute of 1849, (eh. 375,) by which (§ 3) it was, enacted that “ all contracts made between persons,- in contemplation.of marriage, .shall remain in full force after such marriage takes place.” The subsequent marriage of. these parties did not, therefore, affect or destroy the note. It was a contract to pay, made in contemplation of marriage, and by force óf the statute remains in full force after the marriage.

Curtis v. Brooks, (37 Barb. 476,) contains no reasoning to show that the note was extinguished, but simply refers to a manuscript decision as having been made to that effect. I might, nevertheless, yield to its authority as a general term case, except that it seems to me. inconsistent with Dygert v. Remerschnider, (32 N. Y. 631.)

In Strong v. Skinner, (4 Barb. 552,) and Tisdale v. Jones, (38 id. 523,) cited by Judge Barnard, the marriages took place before the act of 1849, and, of course, do not bear upon the present case, which is assisted by that statute. Whether the plaintiff can sue at law does not seem to me to be a very material question, though I think she can, because there is no doubt that she may sue in equity, and as the same court is to administer justice, whether through the form of law or the proceeding in equity, it seems to me that when we have the case before us, showing that this note was her separate property, we ought in some shape to apply a remedy..

I think the judgment should be affirmed.

Ingraham, P. J., concurred.