(49 Hun, 381)

WHITE . WOOD.

(Supreme Court, General Term, Fourth Department. July, 1888.) HUSBAND AND WIFE-CONFESSION OF JUDGMENT BY WIFE-MOTION TO SET ASIDE. A judgment, confessed by a married woman to secure a debt of her husband, will be set aside on her motion. Such judgment is not a contract within the meaning of Laws N. Y. 1884, c. 381, § 1, empowering a married woman to contract as if sole, nor does that act repeal by implication Code Civil Proc. N. Y. § 1273, authorizing her to confess judgment for a debt contracted for the benefit of her separate estate, or in the course of business carried on by her on her separate account.

Appeal from special term; WILLIAMS, Justice.

Motion by Catherine Wood to set aside, as against her, a judgment confessed by her and her husband, Abram Wood, in favor of Henry A. White. From an order denying the motion she appeals.

Argued before HARDIN, P. J., and MARTIN and FOLLETT, JJ.
Elon B. Brown, for appellant. J. W. Shea, for respondent.

MARTIN, J. On the 6th day of June, 1885, the appellant, a married woman, and her husband, Abram Wood, signed a statement of confession of judgment in the respondent's favor for $273.48. A judgment was perfected and entered thereon in Oswego county, June 11, 1885. March 23, 1886, the appellant moved to set such judgment aside as against her, on the grounds: First, that the debt for which it was confessed was neither her debt, nor for the benefit of her separate estate; second, that the statement of confession did not comply with subdivision 2, § 1274, Code Civil Proc.; third, that the statement was unverified. This motion was based on the judgment roll and the appellant's affidavit. The appellant's affidavit was to the effect that the debt for which such judgment was confessed was not a debt for which she was liable, but was the debt of her husband. This was not disputed. The appellant's motion was denied. From the order denying such motion this appeal was taken.

The first and most important question is whether a married woman can legally confess a judgment to secure the debt for her husband. At common law a judgment entered upon the confession of a married woman was undoubtedly voidable, if not void. Watkins v. Abrahams, 24 N. Y. 72; Roraback v. Stebbins, *42 N. Y. 62. In 1868, after the passage of the enabling acts of 1849 and 1860, and the amendments thereto of 1862, it was held in the case of Bank v. Garlinghouse, 53 Barb. 615, that a married woman might confess a judgment to secure a debt contracted by her and for her use and benefit in carrying on her separate business. In 1876, by section 1273 of the Code of Civil Procedure, it was provided, "a married woman may confess such a judgment as if she were single." This section was, however, amended in 1877 so as to provide, as follows: "A married woman may confess such a judgment if the debt was contracted for the benefit of her separate estate, or in the course of any or other business carried on by her on her sole and separate account." This change in the statute shows quite conclusively that it was the legislative intent that a married woman should be permitted to confess a judgment only for a debt contracted for the benefit of her separate estate, or in the course of her separate trade or business. There has been no amendment or express repeal of this provision. If it has been repealed it was repealed by implication only. If unrepealed, then it is quite obvious that under the provisions of this section a married woman cannot confess a judgment for a debt not contracted for the benefit of her separate estate, or in the course of her separate trade or business. But it is contended by the respondent that chapter 381 of the Laws of 1884 has so far enlarged the powers of married women that they may now confess judgments for the debts of others, as well as for debts contracted for the benefit of their separate estate, or in V.2N.Y.s.no.19-43

their separate trade or business. By that statute it is declared: "Section 1. A married woman may contract to the same extent, with like effect and same form, as if unmarried, and she and her separate estate shall be liable thereon, whether such contract relates to the separate estate or otherwise; and in no case shall a charge upon her separate estate be necessary. Sec. 2. This act shall not affect or apply to any contract that shall be made between husband and wife." The respondent bases his claim as to the validity of the order appealed from upon the theory that a married woman now possesses unlimited power to make any contract she may see fit, except to contract with her husband, and hence that she may confess a judgment for her husband's debt to a third person. To justify this claim it must be held that the statute of 1884 has by implication repealed the provision of section 1273, relating to the confession of judgments by married women, and that a confession of judgment is a contract within the spirit and meaning of that statute.

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First, then, has the statute of 1884 worked a repeal of the portion of section 1273 under consideration? We think not. Repeals by implication are not favored in law. It is only in cases where the statute last passed is repugnant to, or inconsistent with, the existing statute, so that the two cannot be harmonized, or when the whole construction of the subsequent act shows that it was clearly intended to supersede the former statute, that a repeal by implication rises. In re Curser, 89 N. Y. 401; People v. Crissey, 91 N. Y. 616; Mark v. State, 97 N. Y. 578. We think there was no such inconsistency between these two statutes as to work a repeal of section 1273, nor does the language of the statute of 1884 show that it was amended to supersede section 1273, so as to effect such repeal. Nor do we think that a judgment is a contract within the spirit and meaning of the statute of 1884. While it must be admitted that, in a general sense, a judgment may be said to be a contract, as in the division of actions ex contractu and ex delicto, still the courts have been inclined to construe language similar to that employed in this statute to include only such contracts as are actually made by the parties, and not to extend it to judgments or statutory duties. In Wyman v. Mitchell, 1 Cow. 316, it was said: A judgment is in no sense a contract or agreement between the parties." In the McCoun Case, 50 N. Y. 176, in construing the words "action on contract" in section 129 of the Code of Procedure, it was held that the word "contract" related to an agreement between the parties, either express or implied, and did not apply to a statutory penalty, although the law might imply a contract in such a case; and in that case it was said, “Even a judgment founded upon a contract is no contract." In the Remington Paper Co. Case, 32 Hun, 255, it was held that an action brought under section 3243 of the Code of Civil Procedure, to recover the costs of a former action prosecuted by the defendant in the name of another, was not an action or contract within the meaning of section 635 of the Code of Civil Procedure, providing for the cases in which an attachment may issue; and the doctrine of the foregoing cases, to the effect that a judgment is not a contract, was there again repeated. The O'Brien Case, 95 N. Y. 428, involved the construction of chapter 538, Laws 1879, reducing the rate of interest. That statute provided that nothing therein contained should be so construed as to in any way affect any "contract or obligation" made before the passage of that act. In that case a judgment was preferred in 1877. An execution was issued in 1883, with instructions to the sheriff to collect the amount thereof, with interest at 7 per cent. from the entry of judgment. An order was applied to restrain the sheriff from collecting interest at a greater rate than 6 per cent. after January 1, 1880, when the statute took effect. It was denied. See opinion, DANFORTH, J., page 436. In that case it was held that the exception in that act should be so construed as to apply only to a "contract of obligation" resting upon the mutual agreement of the parties; and that a judgment was not such a contract. EARL, J., in delivering an

opinion in that case, quotes the language of Lord MANSFIELD in Bidleson v. Whytel, 3 Burrows, 1545, 1548, "that a judgment is no contract, nor can be considered in the light of a contract," and cites, in addition to the cases already cited, Rae v. Hulbert, 17 Ill. 572; Todd v. Crumb, 5 McLean, 172; Smith v. Harrison, 33 Ala. 706; Masterson v. Gibson, 56 Ala. 56; Keith v. Estill, 9 Port. (Ala.) 669; Larrabee v. Baldwin, 35 Cal. 156; In re Kennedy, 2 S. C. 226; State v. City of New Orleans, 109 U. S. 285, 3 Sup. Ct. Rep. 211, as holding the same doctrine. See, also, Salter v. Railroad Co., 86 N. Y. 401. Moreover, the statute of 1884 was in derogation of the common law. The rule seems to be well established that statutes changing the common law must be strictly construed, and that the common law must be held no further abrogated than the clear import of the language used in the statutes absolutely requires. Bertles v. Nunan, 92 N. Y. 152; Fitzgerald v. Quann, 33 Hun, 652, affirmed in the court of appeals, June 5, 1888, 17 N. E. Rep. 354. It seems to us that these authorities go very far towards upholding the doctrine that a judgment is not a contract within the intent and meaning of the statute of 1884, and that they are quite adverse to the respondent's contention that the provision of that statute, which permits a married woman to contract to the same extent and in the same form as if unmarried, authorizes a confession of judgment by her for a debt not contracted for the benefit of her separate estate or business. We are of the opinion that section 1273 was not repealed by the laws of 1884; that a judgment is not a contract within the intent and meaning of that statute; and hence that the confession of judgment by the appellant was unauthorized. The appellant's right to make this motion seems to be sustained by the cases of Watkins v. Abrahams, and Roraback v. Stebbins, supra. These considerations lead to the conclusion that the learned judge at special term erred in denying the appellant's motion. This conclusion renders it unnecessary to examine the other questions raised on this appeal. Order reversed, with $10 costs and printing disbursements, and motion granted, without costs to either party.

HARDIN, P. J., and FOLLETT, J., concur.

VAN FLEET v. MCCARN.

(Supreme Court, Special Term, Allegany County. September, 1888.)

1. GIFTS-CAUSA MORTIS-APPREHENSION OF DEATH-EVIDENCE.

Evidence that at the time of making an alleged gift causa mortis the donor was old and infirm, and said that she feared she would not live through the next winter, and that the doctor had told her that she might die at any minute, it not being shown that she then had any disease except rheumatism, is insufficient to warrant an inference that the gift was made under apprehension of immediate death, or that death was caused by any disease which she then had, where it appears that her health afterwards became much better; that she died 14 months thereafter, of a sudden illness, which she was not shown to have had any reason to expect; and that shortly after the alleged gift she disposed of her property by will.

2. SAME DELIVERY TO DONEE-BANK DEPOSIT SLIP.

The delivery by the depositor of a deposit slip issued to her by the bank, and which simply indicates the time and amount of the deposit, and is not signed, is not a sufficient delivery of the money represented thereby to constitute a valid gift causa mortis, the depositor retaining control of such money during her life, without ref. erence to such deposit slip.1

On motion for new trial.

The plaintiff, Levi C. Van Fleet, as executor of the will of Sophronia Pettibone, deceased, brought an action against the First National Bank of Hornellsville to recover $500 deposited in that institution June 9, 1884, by Mrs. Pettibone. The defendant, Mrs. Lucinda McCarn, claiming this money under and

'See note at end of case.

by virtue of a gift causa mortis, an order was made, at the request of the bank, substituting her in its stead. Upon the trial defendant obtained a verdict. This is a motion by the plaintiff for a new trial upon the case and exceptions. At the time of the deposit, the cashier gave Mrs. Pettibone a memorandum thereof in the following words and figures: "Deposited in the First National Bank of Hornellsville, by Sophronia Pettibone, June 9, 1884, $500." This memorandum was not signed by any one. Mrs. Pettibone thereafter delivered a box containing this deposit slip and other securities to one Mrs. Updyke, with instructions to give it to defendant after her (Mrs. Pettibone's) death, which was done.

L. C. Van Fleet, (Rufus Scott, of counsel,) pro se. C. A. Dolson, (James H. Stevens, of counsel,) for defendant.

LEWIS, J. I was impressed upon the trial of this action that the defendant had failed to make out a defense, and that the plaintiff was entitled to a verdict for the amount of the money in controversy; and a further examination which I have given this case has confirmed my first impressions. The plaintiff, as executor, was entitled to the money, unless the defendant established a donation of it to her causa mortis. The statute, for very apparent reasons, requires great formality in a will disposing of property. The law, however, permits the disposal of property causa mortis, but does not favor such disposition of property, and requires one claiming property under such a gift to establish it by the clearest, strongest, and most unequivocal evidence. Grey v. Grey, 47 N. Y. 556; Kenney v. Public Ad’mr, 2 ̃ ̄Áradf. Sur. 320, 321; Delmotte v. Taylor, 1 Redf. Sur. 423; Champney v. Blanchard, 39 N. Y. 116. The ease with which frauds may be perpetrated in such cases has led to the adoption of this rule. Mrs. Pettibone, at the time of the alleged gift, was old and infirm; but it is not made to appear that she apprehended that death was near at hand. She said, along in the summer of 1885, and about the time it is claimed this gift was made, that she feared she would not live through the next winter; that the doctor had told her that she might die at any minute; but, after the making of these declarations her health was much better, so that she was able to leave her home in Allegany county, and visit the Chautauqua assembly at Chautauqua. She did not die until the 10th day of September, 1886, some 14 months after the making of the alleged gift. She had ample time and opportunity, and was fully competent thereafter, to dispose of her property by a formal will, as she in fact did do, a short time thereafter. The defendant failed to show a gift under apprehension of immediate death, or expectation that death was near at hand, and failed to bring her case within the rule laid down in Daniel v. Smith, 64 Cal. 349, and Gourley v. Linsenbigler, 51 Pa. St. 345. It was incumbent upon the defendant to show that Mrs. Pettibone died of the disease with which she was afflicted at the time of her gift. Grymes v. Hone, 49 N. Y. 17. She was not shown to have had at that time any disease except rheumatism, which is a common ailment with persons of her advanced age. The infirmities of old age seem to have been her main trouble, and the cause of her apprehension of her death. A sudden and acute attack of trouble in her stomach or side was in fact what caused her death. She had been for some time immediately before her death visiting at the defendant's home; had concluded her visit; was fully dressed, prepared to return to her home, and was suddenly and violently attacked with her mortal sickness, without, so far as the case shows, any premonition or reason to expect such sickness. She died quite suddenly. The evidence did not warrant the inference that her death was caused by any disease that she had at the time of the alleged gift.

To sustain a gift causa mortis, there must be such a delivery of the article donated as vests in the donee control and dominion over the property. Harris v. Clark, 3 N. Y. 93. And this brings us to another fatal defect in the

defendant's case. I assume that the deposit slip was in the box at the time it was first delivered to Mrs. Updyke, and remained in it until after the death of Mrs. Pettibone; and, as we have seen, it came into the hands of the defendant after the death of Mrs. Pettibone. But the possession of this deposit slip was of no avail to the defendant. Had she presented it to the bank where the money was on deposit, it would not in any respect have aided her in obtaining the money. It was simply a memorandum, not signed by any one, not binding any one, and was not even evidence of the fact that the bank had the money. The money was in the bank, subject only to be drawn out upon Mrs. Pettibone's check before she died. The bank had not made the return of the deposit slip a condition precedent to the payment of the money. It did not require it to be returned to the bank. It took no account of it. It was simply a memorandum which would inform Mrs. Pettibone of the time and amount of money she had deposited in the bank. It was not evidence of any obligation on the part of the bank to Mrs. Pettibone. Had the defendant obtained possession of the deposit slip during the life of Mrs. Pettibone, the bank would have paid the money upon the presentation of Mrs. Pettibone's check. Mrs. Pettibone continued through her life to have full and complete control over the money, without reference to the deposit slip. How, then, can it be said that the defendant ever obtained control or possession of the money in controversy? And that, under the authorities, is an essential element of a gift causa mortis; as much so as in case of a gift inter vivos. It is important that this wholesome rule should not be relaxed. A mere symbolical delivery will not answer. The donee must either have possession of the article donated or the means of obtaining it. Curry v. Powers, 70 N. Y. 212. In Basket v. Hassell, 107 U. S. 614, 2 Sup. Ct. Rep. 415, MATTHEWS, J., laid down the rule governing the delivery of choses in action as follows: "The point which is made clear by this review of the decisions upon the subject as to the nature and effect of the delivery of a chose in action is, as we think, that the instrument or document must be the evidence of a subsisting obligation, and be delivered to the donee, so as to vest him with the equitable title to the fund it represents, and to divest the donor of all present control and dominion over it, absolutely and irrevocably in case of gifts inter vivos, but upon the recognized conditions subsequent in case of gifts causa mortis; and that a delivery which does not confer upon the donee the present right to reduce the fund into possession by enforcing the obligation according to its terms will not suffice." In the case of Bank v. Clark, 5 N. Y. St. Rep. 262, the court held that a certificate of deposit, signed by the cashier of the bank, prima facie represented an undertaking on the part of the defendant to pay the sum mentioned in it to the depositor on demand. The instrument not containing any absolute agreement to pay on the part of the bank, the court held that the law supplied by implication such undertaking. But the deposit slip in this case lacks the essential element of the cashier's signature. Ĉases holding that the delivery of a savings bank pass-book passes the possession of the fund are not authority for the defendant in this case. The rules of these savings banks require the presentation of these books upon the payment of the money, and authorize the bank to make payment to any one presenting the book. The defendant, I think, failed to establish any defense to this action. The plaintiff was entitled to a verdict, and a new trial must be granted, with costs to abide the result of the case.

NOTE.

GIFTS-CAUSA MORTIS-DELIVERY. To constitute a valid gift causa mortis, there must be not only an actual and complete delivery, so as to deprive the donor of all further control or dominion over the property, but the donee must take and retain possession until the donor's death. Dunbar v. Dunbar, (Me.) 13 Atl. Rep. 578. The delivery must be as complete as the nature of the property will admit of. Gano v. Fisk, (Ohio,) 3 N. E. Rep. 532, and note; Lamson v. Monroe, (Me.) 5 Atl. Rep. 313. It must be such