¶1At 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.
¶2I concur in the result for this reason.
¶3Judgment and order reversed, and new trial ordered, with costs to appellant to abide event.