October 31, 1895, at Webster, in the county of Worcester, in the state of Massachusetts, the relators stole certain property, including certain coupon bonds, described as "Three Webster Water Lien Coupon Bonds." It further appears that the relators, both of whom reside in the city of New York, within a short time after the theft, were in possession of the bonds in question, and attempted to sell them. It is claimed upon their part that the bonds were received by the relator Ryan, who was a bartender, from a woman called "Maggie," and that he undertook to dispose of them on her account; that for the purpose of doing so he asked the co-operation of the relator Thompson; and that the broker to whom the bonds were delivered for the purpose of sale, suspecting that they might be the property which had been stolen, communicated with the authorities at Webster. The result of this was that the bonds were identified as the stolen property, the proceedings above mentioned were instituted against the relators, a warrant for their apprehension was issued by a justice of the peace, and a requisition based upon the record thus made was forwarded by the governor of the state of Massachusetts to the governor of this state, together with a certified copy of the record, upon which a warrant of extradition has been issued, a copy of which record is before me.

Section 827 of the Code of Criminal Procedure regulates the proceedings in such cases, and requires that the prisoner arrested under the warrant of the governor shall be taken before a judge of the supreme court or of any superior city court, or the presiding judge of a court of sessions, who shall inform the prisoner of the cause of his arrest and the nature of the process, and instruct him that if he claims not to be the particular person mentioned in the indictment, affidavit, or warrant annexed thereto, or in the warrant issued by the governor thereon, he shall have a writ of habeas corpus upon filing an affidavit to that effect, and that if, after a summary hearing, as speedily as may be consistent with justice, the prisoner shall be found to be the person indicted or informed against, and mentioned in the papers above referred to, then the court or judge shall order and direct the officer intrusted with the execution of the warrant of the governor to deliver the prisoner into the custody of the agent designated in the requisition and the warrant issued thereon as the agent of the state from which the requisition has proceeded; otherwise, he shall be discharged from custody by the court or judge. According to the letter of the statute, at least, the only question which the court can determine is the question of the identity of the prisoner with the person against whom the charge has been made, or with the person named in the warrant of the governor; and I think that, with one exception, this construction is also in accordance with the spirit of the statute, and the legislative intent which led to its enactment. It has been held that, if the papers upon which the governor issued his warrant are before the court, it has the power to determine whether or not they charge the prisoner with the commission of a crime, and that, if it appear upon such an examination that the commission of a criminal offense in the state demanding the extradition is not sufficiently charged, the court has power to discharge

the prisoner upon habeas corpus, notwithstanding the warrant of the governor. People v. Brady, 56 N. Y. 182; People v. Pinkerton, 77 N. Y. 245. It would also seem that it must appear upon the papers that the prisoner is a fugitive from justice, in the sense that he was either present in the state at the time of the commission of the offense charged, or that the crime alleged is of such a character as necessarily to imply the presence of the prisoner within the state at the time it was committed. This excludes a certain class of crimes which may be committed by persons who are not at the time within the state whose laws have been infringed. To be a fugitive from justice, and therefore subject to extradition, it must appear by proof or necessary inference that the prisoner was within the state at the time of the commission of the crime with which he is charged. If the papers upon which the governor's warrant is issued tend to show that the case is one coming within this definition, I do not think that the court has any power to try the question, on habeas corpus, whether the prisoners were or were not, at the time the offense was committed, within the demanding state. In the case at bar a large amount of proof has been taken tending strongly to show that the relators were not in the state of Massachusetts, but in this state, at the time when the bonds in question were stolen. But all of this is really matter of defense to the charge. Upon the trial of the charge in the state of Massachusetts, the commonwealth must make out its case by proving the commission of the theft in question by the relators; and the ground upon which they now seek to be discharged in this state is really the defense of an alibi, which should properly be made and proven upon such trial. It never could have been intended by the legislature, nor is it, I think, a matter of constitutional right with the relators, that such a question as this should be tried and determined in such proceedings as these. It has been repeatedly held that the court has no right, upon a question of extradition, to consider the charge upon its merits, or to undertake, in any way whatsoever, to determine whether it is well founded or not. In re Clark, 9 Wend. 212. At page 221, Chief Justice Savage, in giving the opinion of the court, says:

"But whether he is guilty or not is not the question to be decided here. It is whether he has been properly charged with guilt, according to the constitution and the act of congress. The prisoner does not deny any of the facts set forth in the warrant upon which he has been arrested. It is not denied that the governor of Rhode Island has demanded him as a fugitive from justice. It is not denied that an affidavit charging him with criminality was presented to the governor of New York, nor is it denied that the governor of Rhode Island has certified that the affidavit was properly authenticated. These are the material facts."

I think, therefore, that the law applicable to such cases is: (1) Where the papers upon which the governor acted in issuing his warrant are before the court, it must appear therefrom that the prisoner is duly charged with the commission of a crime in the demanding state. (2) It must also appear upon the face of the papers, either by affirmative allegation or by necessary inference from the nature of the offense charged, that the prisoner was in the demand

ing state at the time when the offense charged against him was committed, for it is under such circumstances only that he can be held to be a fugitive from justice. (3) The prisoner must also be identified as the person against whom the charge was made, and for whose arrest the warrant of the governor has been issued.

The question of identity, then, is substantially the only question of fact open to challenge by the prisoner. Whatever other questions may be raised are questions of law upon a construction of the record by the court. In the case at bar the evidence of identity is complete. It is beyond dispute that the relators are the persons against whom the Massachusetts warrant has been issued, for whom the governor of that state has made requisition, and who are named in the warrant of the governor of this state, and found by him to be fugitives from justice. That being the case, under the view of the law which I have taken, the only course open for me is to dismiss the writ, and remand the prisoners to the custody of the officers having them in charge. It may very well be that this will involve great hardship, as the evidence certainly tends to show, as I have said, that they were within the state of New York at the time of the alleged offense. But I cannot allow this consideration to affect the disposition of the matter which I believe to be strictly in accordance with law. It cannot be doubted, however, that in the state of Massachusetts they will receive a perfectly fair trial, and their rights will be adequately protected.

Writ dismissed, and prisoners remanded.

(15 Misc. Rep. 72.)

WHITNEY v. WHITNEY.

(Supreme Court, Special Term, Monroe County. November, 1895.) HUSBAND AND WIFE-CONTRACT FOR SEPARATION-MARRIED WOMAN'S ACT.

Laws 1892, c. 594, providing that a married woman "may contract with her husband or any other person to the same extent, with like effect, and in the same form as if unmarried," also provides as follows: "But nothing herein contained shall be construed to authorize the husband and wife to enter into any contract by which the marriage relation shall be altered or dissolved." Held, that the act does not authorize the making of a contract between husband and wife by which, in consideration of their separation, the husband agrees to pay the wife an allowance.

Action by Clara G. Whitney against W. Wallace Whitney, her husband, to recover for breach of a contract to pay the plaintiff a weekly allowance on condition that the parties should "live separate and apart from each other the same as if they were unmarried." Defendant demurs to the complaint. Sustained.

C. D. Kiehl, for plaintiff.

Edward Webster, for defendant.

ADAMS, J. At common law executory contracts between husband and wife were absolutely void, and no instance of their enforcement by the courts can be found among the reported cases in this state or in England. It is true that courts of equity have up

held what are termed "deeds of separation," by which, through the medium of some third party, acting as a trustee, provision is made by a husband for the support of his wife, although in doing so they have taken occasion to say that such contracts are at variance with the policy of the law, and it was remarked by Lord Chief Justice Denman, in Jones v. Waite, 5 Bing. N. C. 341, that "many of the judges gave effect to them for any purpose with reluc tance, and would have paused if the question had been new." It will be observed, also, that even a court of equity will not interfere to enforce an agreement of this character which is founded upon no other consideration than a mere voluntary separation of the parties; while in a court of law, until a comparatively recent period, no effect could be given to it, whatever might have been the consideration. Beach v. Beach, 2 Hill, 260; Griffin v. Banks, 37 N. Y. 621.

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It is insisted, however, that the common-law rule has been so far modified by statutory enactment that a contract like the one sued upon may now be entered into by husband and wife, and that, when thus entered into, it will be enforced by the courts. That the tendency of legislation in this state for the past 50 years has been to remove the common-law restrictions which hampered a married woman in the enjoyment of her property and personal rights is a fact well known by every one; and in order that she might be placed in the exact position of a feme sole, the legislature has recently enacted that she "may contract with her husband or any other person to the same extent, with like effect, and in the same form as if unmarried." Laws 1892, c. 594. It is difficult to see how less than this could be accorded married women in view of preceding legislation, but it will be noticed that, in this removal of the "last barrier," the legislature was careful to limit its action to such rights and liabilities as are strictly legal in their nature, and therefore we find embodied in the act in question this provision:

"But nothing herein contained shall be construed to authorize the husband and wife to enter into any contract by which the marriage relation shall be altered or dissolved, or to relieve the husband from his liability to support his wife."

Now, the contract which lies at the foundation of this action is one which very materially alters the marital relations of the parties. By its terms the husband and wife have voluntarily separated, and are hereafter to live as strangers to each other. In consideration of this practical dissolution of the marriage tie, the husband agrees to pay the wife a certain sum weekly, and, he failing to fulfill the obligation thus assumed, she comes into a court of law and invokes its aid in the enforcement of the contract. Can anything more subversive of social order, sound public policy, or good morals be imagined? To give to the act of 1892 the construction contended for would tend to disintegrate society and resolve marriage into the merest farce. This court is unwilling to believe that any such anomalous condition of affairs was within the contemplation of the legislature, and therefore it must hold that plaintiff's action cannot be maintained.

STURZ v. FISCHER.

(Supreme Court, Special Term, New York County. January, 1896.) 1. DISSOLUTION OF ATTACHMENT-PRACTICE-LITIGATED MOTIONS.

A motion to dissolve an attachment founded on the papers on which it was granted, which Code Civ. Proc. § 683, provides may be heard with or without notice, is not a "litigated motion," which rule 1, appellate division rules, requires to be heard in part 1 of the court, but is within rule 5, providing that "application for all court orders ex parte, *** or where notice is not required, must be made to the special term for the transaction of ex parte business" (part 2).

2. ATTACHMENT-GROUNDS FOR-STATEMENT IN AFFIDAVIT.

An affidavit for attachment reciting that defendant "has assigned, disposed of, or secreted his property," is not an alternative statement of the grounds. Cronin v. Crooks, 28 N. E. 268, 143 N. Y. 352, distinguished. Action by Frederick Sturz against Frederick T. Fischer. Defend ant moves to vacate an attachment. Denied.

Leopold Leo, for the motion.

Hastings & Gleason, opposed.

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PRYOR, J. The application being, on notice, to vacate a warrant of attachment on the papers upon which it issued, the preliminary question is presented whether the motion can be entertained by the justice presiding in part 2 of the special term. By rule 1, appellate division rules, "litigated motions" must be heard in part 1. By rule 5, "application for all court orders ex parte, or where notice is not required, must be made to the special term for the transaction of ex parte business." An application to vacate an attachment, when founded only on the papers upon which the warrant was granted, if the warrant was granted by a judge, out of court, must be made to the same judge, in court or out of court, and with or without notice, as he deems proper. Code, § 683. "Litigated motions," as intended in rule 1, I take to be motions which can be heard only on notice. As this application may be heard "with or without notice," manifestly notice "is not required"; and so, by rule 5, it may be heard at the special term for the transaction of ex parte business. By section 641 of the Code, "the warrant must recite the ground of the attachment," else it is void. Cronin v. Crooks, 143 N. Y. 352, 38 N. E. 268. In the case before me, the recital of the ground of attachment is that the defendant "ha's assigned, disposed of, or secreted his property," etc. In Cronin v. Crooks, supra, the court held that a statement of two grounds disjunctively and in the alternative is a statement of neither ground, since, obviously, to affirm one or the other proposition is to affirm neither. A statement that an attachment proceeds upon one or the other of two distinct grounds fails to indicate upon which ground it proceeds. It stands not upon the one, but upon the one or the other, and the averment leaves in question whether upon the one ground or upon the other. Hence, if defendant's position be valid, that the warrant in controversy exhibits alternatively two distinct grounds of attachment, there would be no escape from the conclusion for which he contends.