Rosseau v. Rouss

Ingraham, J. (dissenting) :

I do not think that the proof disclosed á consideration to support the alleged promise made by the defendant’s testator to pay to the plaintiff the sum of $100,000 upon his tenth birthday. It is true that courts have gone very far in spelling out a consideration to support a promise made by the father of an illegitimate child for the benefit of the child, but notwithstanding the moral obligation that exists, a contract to pay money to an illegitimate child must be based upon a sufficient consideration, and so long as a consideration is required, it must be established before such a promise can be enforced. The evidence as to the agreement is the testimony of the plaintiff’s mother. She testified that her relations with the defendant’s testator commenced in. 1890, and continued until May, .1901; that the plaintiff was born on June 5, 1892, and the agreement sought to be enforced was made in the latter part of May, or the first part of June, 1901; that during this period and down to the time of his death the defendant’s testator supported the witness and her son ; that the defendant’s testator commenced paying her ten dollars á day or seventy dollars a week after the plaintiff’s expenses, commenced to increase in 1896; that the amount was paid in weekly payments. It was $10 á week, and he continued .to pay that amount up to the time- of his death. The money was paid for the benefit of the boy. For his support and care and my expenses also.” She further testified that in the latter part of May, or the first of June, she had a conversation with the defendant’s testator at which she told, him that she intended to leave the city and take her boy with her; that she preferred going where the surroundings would be more palpably moral; that to that the defend*239ant’s., testator objected most seriously; he said, “you shall not take Charley away. You may go if yon wish, but I don’t want him to go. But you must keep my boy right here in this city. You must rear him as my son. * * * Remember, that if you do so, I will settle upon Charley when he is ten, the sum of $100,000. It is nothing — I am a rich man, my children will have plenty. Plenty. I don’t mind that little amount of money. I will give it to Charley for his support, but he must be reared as my son. He must have the best that the money that I now give provides. I want him to have the best raising; I Want him "to be raised a Christian gentleman.” To this the witness said: “ I don’t want to stay here; I am .tired of it. I am tired, but if it is best for my boy, and if you will give him $100,000, as you say, I submit to your view, but I don’t want to,, yet I will for his sake.” The witness also testified that the defendant’s testator repeated this to her several times at subsequent periods ; but it is a compliance on her behalf with this request that furnishes, what is called the consideration for the promise to pay the $100,000. At this time the boy was nearly nine years old, and the defendant’s testator died before the boy became ten years of age. The witness does not testify that she had any money or property of her own, or" that she ever expended one dollar of her own money in the support of this child, or in keeping him here in accordance with this request of the testator; but that on the contrary she received her support and the support of the child from the testator during the period that: they remained here after this promise was made. Assuming, as we must, that the defendant’s testator made this promise, as the jury have so found, the essentials of the consideration necessary to support such a promise are absent. The relations between the witness and the testator ceased some time before this promise was made and according to her testimony were not resumed prior to his death,, and I think more is required to sustain such a promise than a mere-acquiescence in a request that the plaintiffs mother, should keep the child in Hew York for a year when, during that time, he supported, not only the child, but the mother, and paid, so far as appears, all the expenses that were incurred for that purpose.

I think the judgment should be reversed.

Judgment and order affirmed, with costs.