Levin v. Levin , 253 A.D. 758 ( 1937 )

Action to recover from the defendants, as executors, damages for breach of an alleged contract made between the plaintiff and the defendants’ testator, a married man separated from his wife at the time the contract was made. By the terms of the pleaded contract, in consideration of plaintiff’s promise to give her society, companionship and comfort to the testator, and in further consideration of the plaintiff’s further promise to marry him, the testator promised to change his benefieiary under certain life insurance policies aggregating approximately $100,000, to make plaintiff Ms irrevocable beneficiary thereunder, and to assign those policies to the plaintiff; and it is alleged that testator failed so to do. The defendants moved, upon the pleadings and admissions of the plaintiff, for judgment upon the pleadings. (Civ. Prac. Act, § 476; Rules Civ. Prae. rule 112.) From the order granting that motion and judgment entered thereon, plaintiff appeals. Order and judgment unanimously affirmed, with fifty dollars costs and disbursements. Upon the undisputed facts inferable from the pleadings, bills of particulars and admissions of the plaintiff, the contract pleaded, whether it is viewed as an indivisible or a divisible contract, is void as against public policy, and hence unenforcible. (Matter of Alzmann v. Maher, 231 App. Div. 139, 141; Lowe v. Lowe, 265 N. Y. 197; Fischer v. Fischer, 254 id. 463; Baumann v. Baumann, 250 id. 382; Schouler, Marriage, Divorce, Separation and Domestic Relations [6th ed.], § 1479, p. 1734; Noice v. Brown, 38 N. J. L. 228; affd., 39 id. 133; Williston, Contracts, § 861, p. 1647; Id. § 1780, p. 3090.) The defendants are not estopped from challenging the validity of the pleaded agreement, for fraud cannot be based upon a misrepresentation of the law or the legal effect or consequence of a personal transaction or contract. (Lefferts v. Lefferts, 243 App. Div. 278, 279.) Present — Hagarty, Carswell, Davis, Johnston and Taylor, JJ. [159 Mise. 230.]