HAIGHT, J.

This action was brought to recover the sum of $10,000, with interest accrued thereon, upon the following written agreement:

"R.A. MANSFIELD HOBBS, "ATTORNEY AT LAW, "271 BROADWAY, "NEW YORK, November 10 th, 1905.

"It is hereby mutually agreed that the suit of James D'O. Murray against Holmes M. Narwood, be hereby settled and compromised for the sum of ten thousand dollars ($10,000), to be paid in cash at this office on or before the 1st day of December, 1905.

"JAMES D'O. MURRAY, "HOLMES M. NARWOOD. "Witness,

"R.A. MANSFIELD HOBBS."

The facts, in so far as they are material to be here considered, are, in substance, as follows: On the 26th day of October, 1905, the plaintiff returned to his residence at Merrick, Long Island, and found upon his wife's bureau a letter from the defendant addressed to her, from which the plaintiff claims to have drawn the inference that improper relations existed between them. The next day a meeting took place between the plaintiff and the defendant in the presence of Hobbs, the plaintiff's attorney, and at that meeting an action was commenced on behalf of the plaintiff, Murray, against the defendant, in the Supreme Court, county of Nassau, by the service of a summons upon the defendant. No complaint was served, and the parties differ as to what was said with reference to the purpose of the action. The plaintiff claims that it was stated that it was to recover damages for criminal conversation, while the defendant maintains that the action was brought to recover damages for the alienation of the affections of the plaintiff's wife. The meeting concluded with the execution of the following agreement:

"FREEPORT CLUB, " October 27 th, 1905.

"The following agreement is made this date, between James D'O. Murray of Freeport, L.I., and Holmes M. Narwood of Brooklyn, N Y, in consideration of the mutual promises herein contained:

" First. That Mrs. Frances W. Murray shall immediately return to her mother's home in Philadelphia, Pa.

" Second. That Mrs. Frances W. Murray shall immediately proceed or commence a suit for absolute divorce against her husband, James D'O. Murray, who will not defend such action, on the ground of desertion or cruelty, or non-support, no alimony to be asked for by Mrs. Murray.

" Third. That Holmes M. Narwood agrees to provide for the said Mrs. Murray's support, until such time as it may be mutually agreed by Mr. J. D'O. Murray to discontinue same, and also agrees to look out to the best of his ability for her moral welfare.

" Fourth. Holmes M. Narwood agrees to defray the expenses of the divorce action, and also to reimburse Mr. Murray for expenses, etc., incurred by him.

"HOLMES M. NARWOOD. "JAMES D'O. MURRAY. "Witness:

"R.A. MANSFIELD HOBBS."

Thereupon the defendant claims to have paid Mrs. Murray over a thousand dollars, in accordance with the above agreement. Subsequently he received a communication from Mr. Hobbs asking him to call at his office on November 10th. He did so and found Mr. Murray there awaiting him. He was then, as he testifies, charged by Mr. Hobbs with having failed to keep his agreement of October 27th; that he had not reimbursed Mr. Murray for his expenses and damages; that Murray ought to receive $50,000 in settlement for this suit which had been brought. But after an interview with Mr. Murray Mr. Hobbs informed defendant that he would settle for $10,000, and thereupon the paper in suit was drawn and executed.

The answer denied the material allegations of the complaint and alleged illegality of agreement, conspiracy, fraud and duress, and claimed the action was settled by the first contract. Upon the trial the court, in submitting the case, instructed the jurors that the agreement of October 27th was void as against public policy; and if the agreement of November 10th, upon which this action was brought, was a part of the same transaction as that of October 27th, and for the same consideration, the latter agreement would also be tainted with the vice of the former, and that this action could not be maintained; but if there was no connection between the two agreements, and they were separate and distinct, the action for criminal conversation being one thing and the action for divorce another, then this action could be maintained. He then submitted the question of conspiracy and duress, instructing the jurors that the defendant must satisfy them by a fair preponderance of evidence that there was conspiracy or duress, etc. At the conclusion of the charge the defendant requested the court to charge "that the burden of proof remains upon the plaintiff throughout the case." To this the court replied: "I refuse to charge that in that form. The burden of proof rests in the first instance on the plaintiff to make out his case along the lines I have indicated. The burden of proof to make out the defenses such as I have indicated rests on the defendant."

The defenses of conspiracy and duress were in reality and in substance negative, in effect alleging that there was no legal contract and that it never had a valid inception. These defenses pertain to the facts which took place at the time the contract was alleged to have been executed, and become the res gestæ, upon which the validity of the contract depends. This class of defenses is distinguishable from those affirmative defenses which are based upon facts occurring subsequently to the execution of a contract, in which it may be changed, altered, modified or settled. It, therefore, follows that the plaintiff, in undertaking to prove the contract upon which his action is based, had cast upon him the burden of establishing, by a preponderance of evidence, that it was a good and valid contract having a legal inception which was binding upon the defendant, and that burden of proof continued with him throughout the case. As was stated by ANDREWS, Ch. J., in the case of Farmers' L. T. Co. v. Siefke ( 144 N.Y. 354, 359): "It is very common to say in such cases that the burden is upon the defendant to establish the fact relied upon. All that this can properly mean is that when the plaintiff has established a prima facie case, the defendant is bound to controvert it by evidence, otherwise he will be cast in judgment. When such evidence is given, and the case upon the whole evidence, that for and that against the fact asserted by the plaintiff, is submitted to court or jury, then the question of the burden of proof as to any fact, in its proper sense, arises and rests upon the party upon whom it was at the outset, and is not shifted by the course of the trial, and the jury may be properly instructed that all material issues tendered by plaintiff must be established by him by a preponderance of evidence." (See, also, Whitlatch v. Fidelity Casualty Co., 149 N.Y. 45, 49; Doheny v. Lacy, 168 N.Y. 213, 220; Lamb v. Camden Amboy R.R. T. Co., 46 N.Y. 271, 279; Simpson v. Davis, 119 Mass. 269; Delano v. Bartlett, 6 Cush. Rep. 364; Klunk v. Hocking Valley R. Co., 74 Ohio St. 125, 133.) We, therefore, conclude that the ruling of the trial judge in this regard was erroneous.

It is now contended on the part of the respondent that no valid exception was taken to the refusal of the court to charge as requested upon the burden of proof. At the conclusion of the charge, the defendant's counsel presented the court with a number of written requests to charge, including that to which we have called attention. As the court concluded its review of the requests, the defendant's counsel took an exception to those requests which his honor had refused to charge. We think this was sufficient. The attention of the judge had been specifically called to the question, by written requests, and there was no necessity of again repeating it in taking the exception.

As we have seen, the trial court had charged the jury that if there was no connection between the contract of October 27th and that of November 10th, and if they were separate and distinct, then the contract of November 10th would not be illegal. The plaintiff's counsel not being content with this, requested the court to charge that "where a contract is in part illegal, and the illegal part is severable from the balance, the effect of such illegality is not to render the whole contract illegal, but the courts will recognize and enforce the legal part, and this is true though the illegality arises out of the violation of a statutory provision." This request was charged and exception taken by the defendant's counsel, who thereupon asked the court to charge the jury that this instruction had no application to this case. This was refused and another exception was taken by the defendant's counsel. While the plaintiff's request may be correct as an abstract proposition of law, we fail to see that it has any application to the circumstances of this case. If the contracts of October 27th and of November 10th are to be treated as one contract, it is quite evident that the basis of the contract was the alleged criminal conversation of the defendant. It would consequently be difficult to sever one division of the contract from the other, both being based upon one and the same consideration. We think the trial court was correct in its first charge; for under it, only in case these two contracts were separate and distinct, made at different times, one pertaining to one cause of action and the other to another cause, can the agreement of November 10th be sustained as valid.

For the reasons stated the judgment should be reversed and a new trial granted, with costs to abide the event.

CULLEN, Ch. J., GRAY, VANN, WILLARD BARTLETT and HISCOCK, JJ., concur; CHASE, J., dissents on the ground that the questions were not raised by exceptions in the trial court.

Judgment reversed, etc.