The plaintiff and defendant are husband and wife. Prior to their marriage, the note in suit was executed by the defendant.
The plaintiff, when asked what was the consideration of the note, testified on the trial, that the defendant proposed marriage to her, and afterwards she said to him that she would not marry him unless he settled something on her. She wanted a mortgage upon his property. ■ This he declined to give, and subsequently he stated to her if she would be his wife he would give her his note for $5000. A few days thereafter, the defendant called .upon the plaintiff, at her store, and then drew up and signed the noté in suit, and delivered it to her. The note, although executed on the 4th or 5th, was dated the 1st of March. A few days after the delivery of the note, the parties were married. They lived together a short time, and then separated.
This is a common law action to recover the amount of the note, with interest from its date. The referee ordered judgment for the plaintiff, and the defendant appealed.
I am of the opinion that this action cannot be main*508tained by the wife, the payee of the note, against her husband.
[First Department, General Term, at New York, April 3, 1871.This note' had no vitality on its delivery. It was given for no consideration other than as testified to by the plaintiff. In the language used in the case, when the note was spoken of between the parties, it was given “ to buy a wife,” and was not to be binding or valid till after marriage. It was merely a written promise given by the defendant, to pay her $5000 and interest thereon, if she would marry him; and on this written promise the action is brought. This agreement, by the subsequent marriage of the parties, became extinguished, at law. (Strong v. Shinner, 4 Barb. 552. Tisdale v. Jones, 38 id. 523.) What, if any, rights the plaintiff may have, in equity, on the contract to which she testifies, it is not necessary, now, to determine. The acts of 1848, 1849, 1860 and 1862, give the plaintiff no right to maintain this action. (44 Barb. 366. 42 id. 374, 641. 25 N. Y. 328.)
The judgment should be reversed, and a new trial granted; and in the judgment entered it should appear that the reversal is upon the law and the evidence.
The order of reference should be vacated.
Judgment affirmed.
Ingraham, P. J., and Cardozo and Geo. G. Barnard, Justices.]