the first cause of action set out in the complaint seeks to recover therefor.

The defendant insists that the agreement is void as against public policy. If it were a mere contract between a husband and wife, then living together, to separate and live apart in the future, this would be true. It would then be an agreement practically dissolving the marriage relation, and one which the law does not permit. Whitney v. Whitney, 4 App. Div 597, 36 N. Y. Supp. 891, 39 N. Y. Supp. 1136. But in the present case the separation had already taken place. An action was pending to obtain a decree of limited divorce. Where a separation exists as a fact, and is not produced or occasioned by the contract, an agreement that the parties will continue to live apart, and that the husband will pay a certain sum for the maintenance of his wife and children, is valid, and can be enforced. Pettit v. Pettit, 107 N. Y. 677, 14 N. E. 500; Galusha v. Galusha, 116 N. Y. 635, 22 N. E. 1114, 6 L. R. A. 487, 15 Am. St. Rep. 453; Lawson v. Lawson, 56 App. Div. 535, 67 N. Y. Supp. 356.

The defendant further claims that the contract is invalid because it was made between the husband and wife without the intervention of a trustee. We are of the opinion that this omission does not invalidate it. It is true that in most of the cases in which the courts have passed upon contracts of this character the contracts were made with a trustee, for the benefit of the wife. No trustee appears to have been employed in Pettit v. Pettit, supra, or in Lawson v. Lawson, supra, and in each of these cases the courts expressly decided that the contracts were valid; there having been an actual separation before their execution. There was no trustee in Hungerford v. Hungerford, 161 N. Y. 550, 56 N. E. 117; nor was the agreement set aside upon that ground. In Poillon v. Poillon (decided by this court) 49 App. Div. 341, 63 N. Y. Supp. 301, the agreement was held void because the separation was in pursuance of the contract; but the question as to whether or not its validity depended upon the intervention of a trustee was expressly reserved and not passed upon.

Section 21 of the domestic relations law (Laws 1896, p. 220, c. 272) confers broad powers upon the wife to contract in respect to her separate affairs even with her husband, and the only prohibition is against those contracts seeking to alter or dissolve the marriage or relieve the husband from liability to support her. The present contract did not purport to alter or dissolve the marriage relation as it existed at the time of its execution, nor was its purpose to relieve the husband from liability to support his wife, but rather in compliance with that duty and in furtherance of his obligations in that regard. But we do not place our decision on the ground that this section of the domestic relations law gave to the plaintiff the right to make the contract in controversy. She had that right, as we read the decisions at the time the law was enacted, and it was not taken away from her by it. The enactment, so far as this section is involved, was but a codification of the statute law as it then existed and as interpreted by the decisions of the courts.

Many contracts between husband and wife have been held valid and binding upon both. The husband may emancipate her, either by express or implied agreement, and give her the right to labor on her own ac

and 131 New York State Reporter

count and receive the compensation therefor. Carver v. Wagner, 51 App. Div. 47, 64 N. Y. Supp. 747. If he has given a note to her, she may enforce payment in an action at law against him. Adams v. Adams, 24 Hun, 401; Granger v. Granger, 2 N. Y. St. Rep. 211. If either party has taken property belonging exclusively to the other, an action in replevin may be brought. Howland v. Howland, 20 Hun, 472; Berdell v. Parkhurst, 19 Hun, 358. Even where a trustee is named in an agreement made after separation, the wife may bring an action at law to enforce its provisions (Potter v. Potter, 8 Civ. Proc. R. 150); and especially where the trustee refuses to bring it (Lord v. Lord, 68 Hun, 537, 22 N. Y. Supp. 1004). So, too, she may sue to collect alimony allowed by a judgment of divorce obtained in a foreign state. France v. France, 79 App. Div. 291, 79 N. Y. Supp. 579.

While the holdings referred to do not directly involve the question under consideration, the principle underlying them all shows that there are many matters concerning which a wife may make an agreement with her husband, valid and binding, without the intervention of a third party. Many expressions may be found in the books that the common-law doctrine that the husband and wife cannot contract with each other, and that she cannot sue him in an action at law, has not been changed by any legislative enactments. The test of the accuracy of these statments is the decisions in which contracts between them without intervention of a trustee have been held valid, and in which she has been permitted to bring an action at law against him. In Manchester v. Tibbetts, 121 N. Y. 219, 24 N. E. 304, 18 Am. St. Rep. 816, the court says:

"When the wife by proper and sufficient proof shows that her husband owes her, she is entitled to the same remedies and has the same standing to enforce any security for the payment of the debt that she may have received, as any other creditor."

Our conclusion is that the contract sued on was valid, and that an action lies in behalf of the plaintiff to enforce it. The proof was ample to sustain the finding of the court below that the separation was not merely temporary. While the contract foreshadows the fact that possibly the defendant might at some future time return to his family, the facts show that that time has not arrived and that it was not really contemplated that a reconciliation would soon occur.

We also think the plaintiff was entitled to recover, upon her second cause of action, for the board of defendant's daughter by a former marriage. The plaintiff testified to an express agreement by defendant, which he partially admits, to pay, and payments had been made for two years thereunder. It was immaterial that the daughter became of age during the period. The defendant had a right to support her after that time if he saw fit. At least, he should have apprised the plaintiff of the fact that their agreement was at an end.

Nor was there any error in the admission of evidence. The plaintiff testified that she was familiar with the price of board, and upon the defendant objecting to the form of the question it was changed, and she testified, without objection, that a reasonable sum was $5 per week, for which she had recovery. The defendant objects that the plaintiff has made no accounting with respect to the income derived from the securities transferred to her. A formal accounting was not a necessity.

She testified as to the amount of income received from the securities, and recovered the difference between that amount and the $1,000 stipulated to be paid, and the defendant made no proof that this difference was too great.

We think the recovery was proper, and that the judgment should be affirmed, with costs. All concur, except PATTERSON, J., who dis

sents.

COLES v. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Term. January 17, 1906.)

1. EVIDENCE-EXPERTS-HYPOTHETICAL QUESTIONS.

A hypothetical question asked of experts is good, if it is within the possible or probable range of the evidence, although it is not based upon all the evidence given, nor upon a judicial summing up of the fair effect of that evidence.

[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 2369-2374.]

2. APPEAL-RESERVATION OF GROUND OF REVIEW-NECESSITY OF EXCEPTION. A reversal cannot be had on a ground of exception to which the attention of the trial court was not specifically directed at the trial.

[Ed. Note. For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1432-1468.]

3. TRIAL-INSTRUCTIONS-CURE OF Error.

Error in language used by the trial justice in charging on certain evidence, was cured by a subsequent statement in the charge, made when his attention was called to the matter, that he did not think he used the language imputed to him, but that if he had in any manner distorted the testimony the jury should disregard everything he had said, and that the case should be tried on their recollection of the testimony.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, § 718.] 4. CARRIERS-INJURIES TO PASSENGERS-ACTIONS-INSTRUCTIONS.

In an action against a street railway for injuries to a passenger, a charge that if plaintiff attempted to board the car with the knowledge of the conductor, the latter's failure to give plaintiff a reasonable opportunity to get on the car would have been a negligent act, such as to bind de fendant, was not erroneous in that it failed to direct the jury's attention to possible contributory negligence on plaintiff's part, where, in the sentence immediately following, the court stated that, if after the car started plaintiff attempted to board it, and met with the accident, she could not

recover.

Appeal from City Court of New York, Trial Term.

Action by Maria G. Coles against the Interurban Street Railway Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

Argued before SCOTT, P. J., and BLANCHARD and DOWLING, JJ.

Bayard H. Ames, for appellant.

Theodore L. Herrmann (Abraham Benedict, of counsel), for respondents.

BLANCHARD, J. This action was brought to recover for injuries sustained by the plaintiff while attempting to board one of the defendant's cars. The appellant relies upon the exceptions to the rulings of

97 N.Y.S.-19

and 131 New York State Reporter

the trial justice upon the evidence and to the charge to the jury, and also contends that the verdict is excessive. The evidence before the jury warranted the amount of the verdict.

The rulings of the trial justice upon the evidence appear upon examination of the testimony to be correct. The ground upon which the incorrectness of the rulings is most frequently urged in the appellant's brief is that questions addressed to expert witnesses regarding the extent of the plaintiff's injuries did not properly state the premises upon which a competent opinion could be based. In several instances, the immediate context of the questions and answers excepted to need only be examined, in order to see that the premises were sufficiently before the minds of both witness and jury. In the remaining instances, where the particular ground of the defendant's exceptions was that the questions put to the expert witnesses did not fairly and fully state all the facts proved in the case, the appellant's contention seems unsound in law. It is sufficient if a hypothetical question is within the possible or probable range of the evidence, without being based upon all the evidence given or upon a judicial summing up of the fair effect of that evidence. Filer v. N. Y. Central R. R. Co., 49 N. Y. 42; Cole v. Falbrook Coal Co., 159 N. Y. 59, 67, 53 N. E. 670. In this connection, the persistence with which the appellant in his points urges reversal, upon grounds for exception to which the attention of the trial court was not specifically directed at the trial, must be expressly disapproved. McGean v. Manhattan Railway Co., 117 N. Y. 219, 222, 22 N. E. 957; Crawford v. Metropolitan Elevated R. R. Co., 120 N. Y. 624, 24 N. E. 305; Tracey v. Metropolitan Street Railway Co., 49 App. Div. 197, 201, 202, 63 N. Y. Supp. 242.

The objection to the language of the trial court, in charging the jury that the plaintiff's daughter said that the conductor "observed her, as there was no obstruction between them," was cured by the following charge, which the justice made when his attention was called to his former statement:

"Upon that point I do not think I used the word 'observed,' but I will say to you that if I have in any manner distorted the testimony in this case, or given a version different from what your recollection of that testimony is, you are to disregard everything I have said in connection with it, because the law says it is upon your recollection of the testimony that this issue has to be decided."

The most important exception is based on the following charge:

"If this plaintiff attempted to board that car, and if the conductor under all the circumstances thereof knew or had reason to know that she intended to board, he should have given her a reasonable opportunity to do so, and his failure so to do would have been a negligent act on his part, which would bind this defendant corporation."

Standing alone, such a charge might well be error, by reason of its failure to direct the attention of the jury to possible acts of contributory negligence on the part of the plaintiff. Kellegher v. Forty-Second Street R. Co., 171 N. Y. 309, 63 N. E. 1096. But in the sentence immediately following, the court expressly qualified the language objected to, as follows:

"If, however, after that car had started, no matter how slow it was going, the plaintiff attempted to board it and then met with this accident, she cannot recover in this case."

In Bente v. Metropolitan Street Railway Co., 90 App. Div. 213, 86 N. Y. Supp. 85, the court told the jury that it was negligence on behalf of the defendant to start the car while a passenger was about to alight, when the car had stopped for the purpose of allowing the passenger to alight; and the court left it to the jury to say whether the plaintiff was free from contributory negligence. This charge was held not to be error. Within the rule applied in that decision, the charge in the present case was correct.

Judgment affirmed, with costs.

DOWLING, J., concurs. SCOTT, P. J., concurs in result.

FINNEY V. BENNETT.

(Supreme Court, Appellate Term. January 17, 1906.)

1. CONTRACTS-EXCUSES FOR BREACH-IMPOSSIBILITY OF PERFORMANCE.

Where plaintiff knew that magnesium stains are a frequent, inherent, and ineradicable defect in bricks, and defendant did not know that fact, and plaintiff contracted to renovate the brickwork on a house, guarantying to make it look like new, without making any exception of magnesium stains, he could not urge the impossibility of eradicating magnesium stains, which appeared on the house, and which he was unable to remove, as an excuse for not complying with the terms of his contract by removing all the stains.

[Ed. Note.-For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 1444-1446.]

2. APPEAL-REVIEW-PRESUMPTIONS-JUdgment.

A complaint on a contract for renovating the brick and stonework of a house, alleged that plaintiff had performed work at the agreed price of $450, and that only $300 thereof had been paid, and also alleged a quantum meruit. Plaintiff failed to show a proper renovation of the brickwork, and also failed to show the proportionate part of the contract price which was represented by the renovation of the brickwork, and the value of all the work done exclusive of the renovation of the brickwork. The court awarded plaintiff a judgment for $150. Held, that it would be presumed on appeal that the court rendered judgment upon the contract count, and not upon the quantum meruit count, and the judgment would be reversed accordingly without regard to what plaintiff's rights might be under the quantum meruit count.

Appeal from Municipal Court, Borough of Manhattan, Tenth District.

Action by Edward P. Finney against Henry W. Bennett. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before SCOTT, P. J., and BLANCHARD and DOWLING, JJ.

Wallach & Cook, for appellant.

George L. Donnellan, for respondent.

BLANCHARD, J. This is an appeal by the defendant from a judgment in favor of the plaintiff in an action brought to recover a balance