majority">O’Brien, J. :

Many of the questions argued orally, and in his brief, by the learned counsel for the appellant are not properly before us. Thus it is insisted that the complaint is fatally defective in not having alleged notice to, and a refusal by, the trustees to sue. To be available, this objection should have been taken by answer or demurrer, and the failure to do so waived it. (Code Civ. Proc. §§ 488, 498, 499 ; Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648; Nanz v. Oakley, 122 id. 631; Coffin v. President, etc., Grand Rapids Hydraulic Co., 136 id. 655.) Again it is urged that the court erred in its charge to the jury upon the subject of the consideration necessary *122to support such an agreement. It does not appear that any exception was taken to the charge, and, therefore, that question also is not before us.

But assuming the question to be properly raised, we find in this record no violation of the rule contended for that in order to enforce an executory contract obtained by a husband from his wife it is necessary for the former to show adequate consideration and the utmost good faith in obtaining the contract. This is a salutary rule, but, strictly speaking, it applies only where the married relation has not been disturbed and the parties are living on such terms of intimacy and confidence as exist between husband and wife. Here it appears from the plaintiff’s testimony that during their married life the defendant had received from him considerable money under an agreement to save some of it for his support in his old age. After receipt of the money, the parties had separated and were living apart for a period of at least five_years when the plaintiff threatened the defendant with a lawsuit to enforce the agreement for his support or to recover back the money, and as the outcome of negotiations between the parties conducted by a lawyer to bring about a settlement, the agreement here sued upon was made.

Crediting the plaintiff’s testimony as the jury had a right to do, much of the argument which has been advanced as to agreements made between husband and wife while living together and the invalidity of such when the sole consideration is that the parties should live apart, is entirely foreign to a discussion of the facts here presented. The contention that the contract was one of separation is disproved not only by the fact that the parties had for a long period been living apart, but also by the instrument itself which recites that they “ have agreed to live separate and apart,” which in connection with the other recitals, is evidently the equivalent of saying that they “ had agreed to live separate and apart.” Here, therefore, the confidential relation of man and wife had been severed and the record shows that the parties were dealing at arm’s length through an attorney, and, therefore, that the necessity of proving the utmost good faith and the payment of a full and adequate consideration'—• which is the rule as to contracts made between husband and wife while the marriage relation exists — was entirely wanting.

*123The exceptions taken to rulings upon evidence we have examined, but do not regard them as serious enough to justify our interfering with the verdict, which, being supported by sufficient competent evidence, we think should stand.

The judgment accordingly should be affirmed, with costs.

Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.

Judgment affirmed, with costs.

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