At the time that the deposit was made, the plaintiff and the defendant were living together ; and it was an essential part of the agreement that they should thereafter separate. In such a case the contract is void. Poillon v. Poillon, 49 App. Div. 341; Winter v. Winter, 191 N. Y. 462, 410. Moreover, the acts of the parties must be given some reasonable intendment; and, if the money actually belonged to the plaintiff, then the refusal of her husband to pay it to her till after he had obtained a divorce would show an intention on his part to procure her consent to a divorce, and the courts should refuse to enforce a condition imposed evidently only for such a purpose. The defendant herein had no interest in the fund deposited with him; he is merely the depositary. If in fact the money belongs to the plaintiff and is held by him under an illegal contract or under a condition void because of its uncertainty, he should pay it over to the owner. Under such circumstances the depositor -may bring *503an action for money had and received. O’Maley v. Reese, 6 Barb. 658. The plaintiff has made ont a prima facie case of ownership; and the court should not have dismissed the complaint, since the defendant has no right to hold the money.
I concur in the result for this reason.
Judgment and order reversed, and new trial ordered, with costs to appellant to abide event.