Edwin H. Tucker, Appellant, v. Eugene B. Dudley, Respondent

Edwin H. Tucker, Appellant, v. Eugene B. Dudley, Respondent. Second Department, June 8,1906. Criminal conversation — release placed in escrow— delivery dependent oh outcome of another action when delivery unauthorized. * ' ' The plaintiff, during the pendency of an action for criminal conversation," delivered a release of thafaction in escrow to be delivered to the defendant, only in ' case the plaintiff’s wife should be successful in an action for divorce brought by her-and should release him'from liability for alimony. In tlie divorce action the husband succeeded on a defense of recrimination and -a decree of divorce was entered in his. favor.. The custodian, of th.e relcasi) qf th.e action for criminal conversation nevertheless delivered the-release out of . -escrow-to the defendant. Held, that tlié condition's precedent to the delivery of the release had not liappbned.'amd'.that the unauthorized delivery thereof was no bar' to the action for criminal conversation,. Appeal by the plaintiff, Edwin H. Tucker, from a judgment of the Supreme Court in favor of the defendant, entered, in the office of the clerk of the county of Kings on the 21st day of October, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term. The defendant by a supplemental answer pleaded a general release of the cause of action, and the complaint was dismissed on the ground that the said defense was made out. The general release was delivered to the attorney for the defendant in escrow during the pendency of the action. He delivered it to his client, but the plaintiff claimed that it was delivered in violation of the terms of the escrow, and that the delivery was, therefore, void. Frederick W. Sparks and Leonard J. Reynolds, for the appellant. Lorlys Elton Rogers [Lewis Stuyresant Chanler with him on the brief], for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: This plaintiff had two actions pending, viz., this present one for cram. con. by the defendant with his wife, and another by his wife against him for an absolute divorce, in which he also prayed for an absolute divorce against her for her adultery with this defendant. He delivered to the attorney for the defendant in this present action a consent of discontinuance and a general release of this caxise of action, in escrow, howevér, the written terms of the escrow being that the attorney should hold the said papers xxntil the'trial and determination of the action for divorce, and in the event of this plaintiff’s wife getting a judgment therein, she was to give kiin a general release for all alimony awarded her by such judgment," whereupon the said attorney was to deliver the said papers out of escrow to this" defendant. "And these wei’e the final words of the terras: “Unless all of the above conditions coxne to pass, then the said general release and order of discontinuance to be returned to me.” » The plain meaning of this was that if his wife prevailed in the divorce action and got judgment against him for alimony this plaintiff would be willing to release this defendant provided this plaintiff’s wife released him from the payment of the alimony. . The consideration for releasing this defendant from, the cause of action for critn.. con. was to be the release of this plaintiff by his wife from the; alimony judgment if she obtained it, , But instead of the wife prevailing in the divorce action this plaintiff prevailed against her and got judgment of absolute divorce. 'As the papprs were held in escrow to he delivered only on the event of his wife getting judgment of alimony against him, and releasing the same, they were" unlawfully- delivered out of escrow for the reason that-the .event never happened. Mor,eove.v,-the consideration which the plaintiff was to get for his'generál release to. Dudley never came into being, -and was not and cannot be givqn. The „fact that he prevailed in the divorce, action cannot he substituted 'for the consideration,. That was not the agreement. His freedom from, liability for alimony did not come to him by a release from his. wife; lie'won it by trial in court and it is his. ' He lias'got what he Was looking to get through his agveeittent with this defendant if his wife had prevailed over him in the divorce action, hut he did riot get it through that agreement. This defendant never rendered the. • consideration which he was to ■ render in order to get the general release, - The judgment should be reversed. ■ Jenks, Rich and Miller, JJ., concurred ; Hooker, J., dissented. Judgment reversed and new trial granted, costs to abide the event. . ,