Art. 1. Infants. An infant who is the owner or occupant of lands is under the same responsibility as any other person for a nuisance, or for the negligent use or management of the property. McCabe v. O'Connor, 4 App. Div. 354, 38 N. Y. Supp. 572, affirmed on prevailing opinion below, 162 N. Y. 600. In Harvey v. Dunlop, Hill & Den. Supp. 193, an action was brought against a defendant six years of age, who had thrown a stone and put out the eye of a neighbor's daughter. Though the defendant acknowledged the act it did not appear from the testimony that the injury was inflicted by design or carelessness, but, on the contrary, that it was accidental. Held, that the plaintiff could not recover. The court said: "In order to arrive at a decision upon this question the jury had a right to take into consideration the childhood of the parties; the friendly relations existing between them, the conduct of both on their return home, and, more especially, the repeated admission of the plaintiff that the defendant was not to blame," etc. These admissions conduct us to the same conclusion arrived at by the jury that the misfortune happened without fault upon either side, and that it was one of those unhappy accidents to which children of the tender age of these parties are not unfrequently exposed in their little innocent plays and amusements a result rather to be deplored than punished." * * * * * * If an infant hire a horse to go a particular journey and goes beyond the place of destination, he is liable for conversion. Fish v. Ferris, 5 Duer, 49. count Infants cannot empower an agent or attorney to act for them, nor affirm what another may have assumed to do upon their acthey are not liable for torts alleged to have been committed by their agent. Tiffany on Domestic Relations, etc., 408; Jaggard on Torts, 160. A promise to marry by an infant is not binding, and an action for breach thereof cannot be maintained. Hamilton v. Lomax, 26 Barb. 615. Replevin for goods detained in violation of the terms of a conditional sale, being an action in tort, can be maintained against an infant. Wheeler & Wilson Mfg. Co. v. Jacobs, 21 N. Y. Supp. 1006. Where the infant pleads his minority to escape payment of a purchase price, the seller may rescind the sale and replevy the Art. 1. Infants. goods." Citing Badger v. Phinney, 15 Mass. 359. The words of Ld. Chan. Cowper in 2 Eq. Cas. 515, are cited with approval: "If an infant is old and cunning enough to contrive and carry out a fraud he ought to make satisfaction for it." SUBDIVISION 2. Liability of Parents for Torts of Infants. * * * * * * A father, simply as a parent, is not responsible for any tort committed by his minor child. Though the relation of parent does not alone render the latter the servant of the former, the child often or commonly is such. In which case the parent will be to the same extent responsible for the child's acts as for those of any other servant. Bishop on Non-Contract Law, §§ 549-551. A parent is not liable for the tort of an infant committed in his absence and without his authority. Tifft v. Tifft, 4 Den. 175, citing McManus v. Crickett, 1 East, 106. Foster v. Essex Bank, 17 Mass. 479 (509), followed Schlossberg v. Lahr, 60 How. Pr. 450. SUBDIVISION 3. Statutory Regulations as to Actions by and against Infants. The provisions of the Code as to appointment of a guardian ad litem for infant plaintiffs and defendants are sections 468477 inclusive. Under the provisions of the Code, section 468, an infant having a right of action is entitled to maintain it, and its prosecution need not be deferred or delayed on account of his infancy. While ordinarily under the provisions of the Code a guardian ad litem must be appointed, yet, it has been held in civil causes that an action may be brought by an agent or testamentary guardian. Carr v. Huff, 57 Hun, 18, 10 N. Y. Supp. 361. At least unless the question is raised by demurrer. Spooner v. D., L. & W. R. R. Co., 115 N. Y. 22; Perkins v. Stimmell, 114 N. Y. 359; Segelken v. Meyer, 94 N. Y. 473. By section 396 it is provided that if a person entitled to maintain an action, except those specifically mentioned, is less than twenty-one years of age at the time when the cause of action accrues, the time of such disability is not a part of the time limited Art. 1. Infants. by the statute for commencing an action, except that it cannot be extended for more than one year after the disability ceases. Hence, an infant may bring his action through his guardian before arriving at full age, or, under the preceding section, may await his coming of age without having his right of action affected by the statute of limitations, since section 396 is part of the title limiting the commencement of actions for torts. A child cannot maintain an action for injury sustained while en ventre sa mere. Walker v. G. N. Ry Co., 28 L. R. A. 69. An infant under the age of fourteen years may be discharged from arrest as a privileged person in the discretion of the court. Code Civ. Proc., § 554. This provision is new in the Code, as it went into effect in 1877, and seems to render obsolete Schuneman v. Paradise, 46 How. 426, citing Wallace v. Morse, 5 Hill, 392. SUBDIVISION 4. Right of Parent to Recover for Injury to Child. Where a minor is injured by a negligent act, the parents have the right of action, and the child has also a right of action. Palmer v. Conant, 58 Hun, 333, 11 N. Y. Supp. 917, citing Cuming v. Brooklyn City Ry. Co., 109 N. Y. 99. A widow is entitled to the services of her infant son and may maintain an action for loss of services resulting from his injuries by the negligence of defendant without proof of actual services rendered by the son. Future contingent expenses can only be recovered by the child. Kennedy v. N. Y. C. & H. R. R. R. Co., 35 Hun, 186, following Gray v. Durland, 50 Barb. 100; Simpson v. Buck, 5 Lans. 337; Furman v. Van Sise, 56 N. Y. 435. In an action by a mother for loss of services of an infant child through injuries to the child, the mother must allege and prove that at the time of the accident she was entitled to the services of the child. Geraghty v. New, 7 Misc. Rep. 30, 57 St. Rep. 497, 27 N. Y. Supp. 403. A parent, in an action for an assault upon his infant daughter, is entitled to recover for the loss of service or other actual losses only; but exemplary damages, by way of punishment for the ag gravated assault, can be recovered only in an action by the infant. Whitney v. Hitchcock, 4 Den. 461. Art. 2. Married Women. ARTICLE II. MARRIED WOMEN. SUBDIVISION 1. Actions between husband and wife.. 2 Liability to third persons ... PAGE. 54 55 3. Right of action by wife against third persons. 57 4. Action by husband for injuries to the wife.. 59 SUBDIVISION 1. Actions Between Husband and Wife. The common-law unity of husband and wife operates to preclude either spouse from maintaining an action for tort against the other. But the legal incapacity of the wife to be joined as a codefendant does not operate to exonerate a joint tort feasor with the wife from an action by the husband, because joint tort feasors may be proceeded against solely as well as jointly. Kujek v. Goldmann, 9 Misc. Rep. 34, 29 N. Y. Supp. 294, citing Dicey on Parties, chap. 16, rule 67; Abbott v. Abbott, 24 Am. Rep. 27. In Minier v. Minier, 4 Lans. 421, it is said that the reasons for not allowing a wife to sue for a personal tort do not apply to an action concerning property. Thus she may sue her husband for the possession of real property wrongfully withheld. To the same effect see Wright v. Wright, 54 N. Y. 437. A wife may sue her husband for conversion of household furniture, wearing apparel, and personal property. Ryerson v. Ryerson, 30 St. Rep. 375, 8 N. Y. Supp. 738. A wife may sue her husband for converting money which is her separate estate. Whitney v. Whitney, 49 Barb. 319, 3 Abb. Pr. (N. S.) 350; Wood v. Wood, 18 Hun, 350. A wife who has left her husband without good cause, and is living separate and apart from him, may maintain an action of replevin against him to recover possession of personal property belonging to her, which was left in and remained in his house and possession. Howland v. Howland, 20 Hun, 472, citing and discussing numerous authorities. Schultz v. Schultz, 27 Hun, 26, holding that a married woman may maintain an action against her husband for assault and battery, was reversed in 89 N. Y. 644, without opinion. Art. 2. Married Women. In 3 Silvernail's Annotations to General Laws, p. 2611, attention is called to the language of the court in Bertles v. Nunan, 92 N. Y. 150 (160), per Earl, J., as follows: "Although section 7 of the Act of 1860 authorizes a married woman to maintain an action against any person for an injury to her person or character, yet, we have held that she cannot maintain an action against her husband for such an injury." That writer considers this reference to be to the decision in 89 N. Y. 644, supra, reversing Schultz v. Schultz, 27 Hun, 26. Abbe v. Abbe, 22 App. Div. 484, 48 N. Y. Supp. 25, holds the rule as last above stated upon authority of 89 N. Y. 644, supra. The like rule was held in Longendyke v. Longendyke, 44 Barb. 366; Freethy v. Freethy, 42 Barb. 641. A criminal action against the husband for abandonment of the wife, under the Code of Criminal Procedure, $$ 899-913, is designed to protect the public against the burden of supporting the wife and children. It is not intended to give the wife any new remedy, directly or indirectly. People ex rel. Douglass v. Nachr, 30 Hun, 461. Divorce does not enable the divorced wife to sue her husband for personal injury committed during coverture. Webb's Pollock en Torts, 65, citing Phelps v. Barnett, 1 Q. B. Div. 436, 45 L. J. Q. B. 277. See also Abbott v. Abbott, 67 Me. 304. A husband may maintain an action for conversion against his wife to recover damages for the wrongful conversion of personal property taken by her from his possession after she has abandoned him. Mason v. Mason, 66 Hun, 386, 21 N. Y. Supp. 306; Berdell v. Parkhurst, 19 Hun, 358. A husband cannot sue his wife to recover damages for deceit by which he was induced to marry her. But he may sue the person who joined with her in the deceit. Kujek v. Goldmann, 9 Misc. Rep. 34, 29 N. Y. Supp. 294, affirmed in 150 N. Y. 176. SUBDIVISION 2. Liability to Third Persons. The reason of the common-law liability of the husband for the torts of his wife was the fact that on marriage he succeeded to all her personal estate which he might reduce to possession during coverture, and thus creditors having a right of action against the wife were deprived of the power to proceed |