communicated. Therefore, while there is such a rule in the common law which will cover situations where protection is justified, it is not proper to suggest a relaxation of the doctrine of communication as publication on the ground of business convenience.

W. C. O'Brien, '21.

Marriage: Separation contracts contemplating immediate separation. In Weeks v. L'Ecluse, 177 N. Y. Supp. 284 (1919), the action arose over the enforcement of a contract made between the husband and wife for the support of the latter. "The complaint alleges that on or about December 25, 1907, the defendant testator, being then the plaintiff's husband, deserted and abandoned the plaintiff, and 'that on or about December 25, 1907, and at the time of said desertion and abandonment,' the plaintiff and defendant entered into the agreement which forms the basis of the complaint. The implication is inescapable that the parties had not yet separated when the agreement was entered into and that it was made in contemplation of this immediate separation. The assertion of the defendant that such contract was void as contrary to public policy was denied and the contract held valid on the authority of Clark v. Fosdick1 and Winter v. Winter. In Tirrell v. Tirrell, 177 N. Y. Supp. 357 (1919), the attorneys for the husband and wife having finally agreed on the terms of the contract, the wife returned and met her husband in their apartment and signed the contract, after which the husband left. It was held that as the parties had not regarded themselves as separated until after the execution of the agreement, they were not separated at the time of execution and the contract was consequently void. The authority of Clark v. Fosdick was expressly negatived on the ground that it had been overruled by section 51 of the Domestic Relations Law, which after giving married women full legal rights to enter into any contracts even with their husbands, provides in the last clause "but a husband and wife can not contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife.”

These two cases serve to illustrate the conflict that has existed in the decisions of the lower courts as to the validity of separation contracts since the enactment in 1896 of the above section. Before the passage of this act the law had been clearly settled by the Court of Appeals in Clark v. Fosdick, which laid down the rule that a contract preceding separation but made in contemplation of immediate separation and not with respect to some future possible separation, was valid. With the passage of section 51 the question arose whether the law had been changed and it was held by the lower courts that it had. In Poillon v. Poillon, where separation followed immediately after the execution of the contract, the court declared that "where the parties have already separated and actually live apart,

such a contract between a husband and a wife might be sustained.

. In this case.

the paper was signed

." and the contract was therefore in violation of the last clause of section 51 forbidding contracts to alter or dissolve the marital status. In Effray v. Effray the court stated that inasmuch as the parties had separated the contract did not purport to alter or dissolve the marriage as it existed at the time of its execution. The test laid down, therefore, by these and other cases is whether the parties had or had not yet separated at the moment of execution of the contract. If this is to be the exclusive test then the principal case of Weeks v. L'Ecluse is opposed to it. But there have been other decisions and many dicta which have refused to consider the mere arbitrary fact of separation or non-separation as the controlling element.

8

Thus in Carling v. Carling the contract for support was drawn up after the parties had separated. The contract was, however, declared invalid by Judge Bischoff who held that all such contracts were violations of section 51, and that the question of separation was immaterial and in no way controlling. On the other hand in Sunderlin v. Sunderlin, where the agreement was made before separation but in contemplation of its immediate occurrence, the contract was held invalid merely on the ground that there had been no trustee, as there was in Clark v. Fosdick, and that the decision would have been contrary had a trustee intervened. This court, therefore, clearly indicated that the fact of separation was not the test of the validity of the contract.

are.

Since the enactment of section 51, Domestic Relations Law, no case similar to Clark v. Fosdick has been presented to the Court of Appeals for decision, which has, therefore, no authoritative precedent to limit it, and it is submitted that there is little reason for adopting as the test, the fact of separation. Logically, the mere fact of separation has not altered the marital status with respect to "the rights and duties which... assigned by the law to matrimony." "They are still husband and wife, but living apart from each other."10 From the view of legislative intent there is little reason to hold that the rule of Clark v. Fosdick has been changed. The purpose of section 51, Domestic Relations Law, is to destroy the legal fiction of marital unity and to enable married women to freely contract directly, where previously they were forced to use the medium of a trustee. To urge, therefore, that by this liberal enactment it was intended that a married woman should be prevented from doing that which she theretofore was able to do through a trustee is anomolIn Effray v. Effray" the court declares that this section is but a

ous.

$110 App. Div. (N. Y.) 545 (1905).

"Lawson v. Lawson, 56 App. Div. (N. Y.) 535 (1900); Dower v. Dower, 36 Misc. (N. Y.) 559 (1901); Effray v. Effray, supra, note 4; Winter v. Winter, supra, note 2.

742 Misc. (N. Y.) 492 (1904).

8123 App. Div. (N. Y.) 421 (1908).

Bishop, Marriage, Divorce and Separation, sec. 11. 10Clark v. Fosdick, supra, note I.

11Supra, note 4.

codification of the pre-existing law as interpreted by the courts and, if this is so, Clark v. Fosdick is directly in point, but stronger than this is the clear statement by the Court of Appeals in Winter v. Winter12 that "In view of the legislation which permits husbands and wives to contract directly with each other, any contract for separation and support, which they could formerly have made by means of a trustee, they can now make without one.

That public policy is in no way offended is apparent, for no logical distinction can be drawn between cases where the separation immediately precedes and those where it immediately follows the contract. If, as has been commonly held since the enactment of section 51, Domestic Relations Law, contracts made immediately after separation, but providing for and perpetuating the separation, are not in contravention of the prohibition of that section, surely then contracts made immediately before separation are logically not in contravention of it. In the principal case of Tirrell v. Tirrell, for example, it is obvious that neither public morals, public decency, the sanctity of marriage nor any other elements which may determine public policy would have been differently affected if the parties had declared themselves separated and then signed the contract instead of doing what was more natural, signed the contract and by that act considered the separation completed. It would seem to contravene a sound public policy rather than to observe it, to decide that because parties did not break up the household until the morning following the execution of the contract, such agreement was void, as was held in Maney v. Maney. 13

The rule of Clark v. Fosdick has prevailed in England for many years and, as Judge Hotchkiss points out, although at one time the law was contrary, it was on grounds of public policy and because the public deemed it desirable to support such contracts that the rule was reversed, and agreements "made in contemplation of immediate separation, which in fact takes place," held "valid and enforcible both as to separation and as to maintenance, in law and equity."14

Not only is the fact of actual separation as a test inconsistent with the generally accepted conceptions of what facts are necessary to alter the marital status, but no reasonable distinction can be drawn between it and contemplated immediate separation which follows as a fact. Neither the words of the statute nor public policy require the distinction, and in view of Clark v. Fosdick and the statement quoted above from Winter v. Winter it may be expected that the Court of Appeals will draw no such distinction.15

12 Supra, note 2.

13119 App. Div. (N. Y.) 765 (1907).

Benjamin Pepper, '20.

14Landes v. Landes, 94 Misc. (N. Y.) 486 (1916); see also Bishop, Marriage, Divorce, and Separation, sec. 1186; Besant v. Wood, 12 Ch Div. 605, 620 (1879); McGregor v. McGregor, 21 Q. B. D. (Eng.) 424 (1888); and Judge Peaslee's History of Separation Contracts in England, 15 Harv. L. R. 638.

15Agreements made before but in contemplation of immediate separation were held valid in Wells v. Stout, 9 Cal. 480 (1858); Reed v. Beazley, i Blackf. (Ind.).97 (1820); Dutton v. Dutton, 30 Ind. 452 (1868); Gaines v. Poor, 3 Metc. (Ky.) 503 (1861); Loud v. Loud, 4 Bush (Ky.) 453 (1868); Holbrook v. Com

Municipal Corporations: Tort liability arising from the negligent acts of fire department. The well established doctrine that the operation of a city fire department is a governmental act, as distinguished from a ministerial act, has been repudiated by the Supreme Court of Ohio in the recent case of Fowler v. City of Cleveland, decided July 8, 1919.2

This was an action for damages for the wrongful death caused by a fire truck striking and running over the deceased who was lawfully in a public highway. The trial court considered itself bound by a previous decision of the highest court in the state, in the case of Frederick v. City of Columbus, in which the same question was raised, and sustained a demurrer to the complaint on the ground that the city was not liable for the negligent acts of the members of its fire department. On appeal the Supreme Court squarely over-ruled its former decision in the Frederick case, and held the city liable on the ground that the wrongful act which caused the injury was caused by a servant of the municipality in the performance of a purely ministerial act.

The dual entity of a municipal corporation has long been recognized. On the one side it is charged with the performance of those duties which are purely governmental in character, "in which the municipality as a corporate body has no particular interest and from which it derives no special benefit in its corporate capacity, but which it is bound to perform in pursuance of a duty imposed by law for the general welfare of the inhabitants of the community." When acting in this capacity the municipality exercises a portion of the state's sovereignty, and is not answerable in damages for any neglect of its officers in the performance of their duties. This is stated to be an outgrowth of the maxim "The King can do no wrong." On the other side, there are the purely corporate, or ministerial functions of a municipality, in which the public at large has no special interest. In the exercise of these rights, the city as a corporate body is held to as strict accountability as any private corporation or individual, and for any injury caused by lack of due diligence on the part of its agents or servants in this regard, the principle of respondeat superior applies, and the municipality will be held liable. It is not always easy to decide in which class a given case falls, for the line of demarcation has not been accurately defined. The court in the principal case attributes the slowness of the courts to enforce a rule of liability against municipalities to this very fact.

stock, 16 Gray (Mass.) 109 (1860); Fox v. Davis, 113 Mass. 255 (1873); Randall v. Randall, 37 Mich. 563 (1877); Thomas v. Brown, 10 Oh. St. 247 (1859); Garver v. Miller 16 Oh. St. 528 (1866).

'For a discussion in comparative law of the tort liability of municipal corporations, see 4 CORNELL LAW QUARTERLY 48.

Not yet reported.

$58 Oh. 539 (1898).

"Mechem, Public Officers, sec. 850.

"Lloyd v. The Mayor of New York, 5 N. Y. 369 (1851); O'Daly v. City of Louisville, 156 Ky. 815 (1914); Hillstrom v. City of St. Paul, 159 N. W. (Minn.) 1076 (1916); Mechem, Public Officers, Supra, note 4.

Cunningham v. The City of Seattle, 42 Wash. 134 (1906); Goodnow, Prin

ciples of Administrative Law of the United States, p. 383.

'Jones, Municipal Corporations, sec. 24.

However, it has been generally held in the United States that the extinguishment of fires is a function which a municipal corporation undertakes in its public, governmental capacity and in connection with which it incurs no civil liability, either for inadequacy of the equipment or for the negligence of its employees. The reason for this exemption from liability is stated by Dillon to be this: "The protection of all buildings in a city or town from destruction or injury by fire is for the benefit of all inhabitants and for their relief from a common danger, and the municipalities are usually authorized by statute to provide and maintain engines and to supply water for the extinguishment of fires. These statutes generally do not impose any duty, and when availed of, the task undertaken is discretionary in its character. The grant of such power must be regarded as exclusively for public purposes and as belonging to the municipal corporation when assumed in its public, political, or legislative character." This ground of municipal non-liability has found expression in many of the adjudged cases, and is also to be found in many of the text books on the subject.

The Supreme Court of Ohio gave its sanction to the above stated principle in the case of Frederick v. City of Columbus.10 In discussing the exemption of a municipal corporation for the negligent acts of the fire department, the court stated:" "The non-liability of the city in such cases rests upon the same reasons as does that of the sovereign exercising like powers; and are distinguished from those cases in which powers are conferred on cities for the improvement of their own territory and the property of their citizens." In overruling the decision in this case, the court encountered no embarrassment. It attributes the change in principle to the great transformation in the conception of what constitutes a municipality. In the language of the court, "a municipal corporation is a vastly different thing now from what it was in the early days. Then its function was very largely expressed in the exercise as a political subdivision, of the delegated and limited powers of the sovereignty. It was a favorite maxim of this country that that government is best which governs least. * Now, the activities and undertakings of a municipal corporation are manifold. They reach and touch in countless directions. It seems to be utterly unreasonable that all these activities and enterprises which are brought closely home to the lives of all of the people of the municipality must still be regarded as bound up in the vague and uncertain sphere of what is called a governmental function."

It is admitted that the city was under no obligation to provide any fire department, and that the exercise of its discretion in that regard is a governmental act, "but when it has determined all of these matters and has placed an instrument upon its streets, which when

Cooley, Municipal Corporations, p. 37; Jones, Municipal Corporations, sec. 31; Dillon, Municipal Corporations, sec. 1660. For a collection of cases see 7 Ann. Cases, p. 805; 28 Cyc. p. 1303; 19 R. C. L. p. 117, note 19; see also City of Hattiesburg v. Geigen, 79 So. (Miss.) 846 (1918).

'Dillon, Municipal Corporations, sec. 1340; see also Goodnow, Municipal Home Rule, p. 113.

10 Supra, note 3.

11Supra, note 3, p. 646.