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Art. 2. Married Women.

against her because no judgment was permitted and nothing could have been realized. For this and other reasons it was necessary to make the husband liable for the torts of his wife, as otherwise the injured person might be completely without a remedy. Rodgers on Domestic Relations, § 242.

Section 450 of the Code provides substantially that a married woman both as plaintiff and defendant shall be regarded, as to actions for tort, as if she were single, and it is further provided that the husband is not a proper party in an action brought on account of the wrongful acts of his wife, committed without his instigation.

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The present statute (§ 27, Domestic Relations Law) provides, She is liable for her wrongful or tortious acts; her husband is not liable for such acts unless they were done by his actual coercion or instigation; and such coercion or instigation shall not be presumed, but must be proved."

This statute evidently changes the common-law presumption as to coercion, which is thus stated in Cooley on Torts, 132: "There is a presumption, however, corresponding to that which is made in criminal law that if the wrong is committed by the wife in the presence of her husband it must have been committed by his consent and under his influence, and consequently it is his wrong rather than that of the wife." It is evident that the statute aims directly at this presumption.

If a husband and wife join in malicious prosecution, she being the real active party as well as he, they may both be joined as defendants. Cassin v. Delaney, 38 N. Y. 178.

Where the action is joint the liability is joint. The husband and wife may be joint tort feasors in assault. If the husband advises or directs a wrong, as entry upon another's premises by his wife, he is liable. Hale on Torts, 128, citing Hayden v. Woods, 16 Neb. 606, 20 N. W. 345; Bauerschmetz v. Bailey, 29 Ill. App. 295.

The wife may be held liable for the acts of her husband as her agent. Thus she can be held liable for the fraud of her husband dealing as her agent with her property. Hale on Torts, 129, citing Rowe v. Smith, 45 N. Y. 230; Baum v. Mullen, 47 N. Y. 577.

A trespass committed by the wife in the care and management of her separate estate is her independent personal tort, for which

Art. 2. Married Women.

the husband is not liable. Rowe v. Smith, 45 N. Y. 230; Baum v. Mullen, 47 N. Y. 577; Fitzgerald v. Quann, 109 N. Y. 441; Mangam v. Peck, 111 N. Y. 401.

Where the husband and wife are domiciled on the premises which are the separate and exclusive property of the wife, the husband is not, in legal presumption, in control of the premises so as to make him responsible to one who enters on the premises of the wife for an injury sustained by the careless leaving of a pit uncovered. Fiske v. Bailey, 51 N. Y. 150.

Nor is a husband acting as his wife's agent in regard to lands liable for a continuing nuisance thereon. People v. Crounse, 51 Hun, 489, 21 St. Rep. 687, 4 N. Y. Supp. 266.

In Valentine v. Cole, 1 St. Rep. 719, the defendant, a married woman, owned the property on which she and her husband lived. Her husband owned and kept a dog, which bit the plaintiff. Held, that the wife, as owner of the premises, was liable for the injury. That since the Married Women's Acts the husband cannot lawfully interfere with his wife's possession of property, and is not liable for trespass of her cattle. She alone is liable for maintaining a nuisance to the injury of her neighbors. Her husband is not in possession solely or jointly with her.

In Quilty v. Battie, 135 N. Y. 201, the rights of married women under various statutes of this State are considered, and it was held that a trespass committed by the wife in the care and management of her separate estate is her independent personal tort, for which the husband is not liable, and in an action to recover damages therefor he is not a proper party.

SUBDIVISION 3.

Right of Action by Wife against Third Persons.

Domestic Relations Law (Laws 1896, chap. 272, § 27) provides that "A married woman has a right of action for an injury to her person, property, or character, or for an injury arising out of a marital relation, as if unmarried.”

In Filer v. New York Central R. R. Co., 49 N. Y. 47, the decision was that, unless the wife was actually engaged in some business or service in which she would, but for the injury, have earned something for her separate benefit, and which she had lost

Art. 2. Married Women.

by reason of the injury, she had sustained no consequential damages.

In Brooks v. Schwerin, 54 N. Y. 343, it was held that when a married woman labors for another her services and earnings no longer belong to her husband but to herself, and so far as she is disabled from performing such services, she can recover for the loss.

In Blaechinska v. Howard Mission, 130 N. Y. 497, it was ruled that recovery could not be had by a married woman, in an action to recover damages for injuries sustained through defendant's negligence, for loss of her services in the discharge of household duties, and for other services rendered by her to her husband, and Brooks v. Schwerin was distinguished because in that case the wife worked for a stranger, while in this she worked for her husband.

These authorities are considered in Texas & Pacific Ry. Co. v. Humble, 181 U. S. 56 (66-67), and followed, the court holding that the fact that the plaintiff, a married woman, who had been engaged for years in business on her own account, was temporarily out of employment, did not prevent her from recovering for diminished capacity to labor under the authorities above cited.

"Presumptively, damages for negligently diminishing the earning capacity of a married woman belong to her husband, and, when she seeks to recover such damages, the complaint must contain an allegation that for some reason she is entitled to the fruits of her own labor; or, if she seeks to recover damages for an injury to her business, she must allege that she was engaged in business on her own account, and by reason of the injury was injured therein as specifically set forth." Uransky v. D. D., E. B. & B. R. R. Co., 118 N. Y. 304 (308); Kleiner v. Third Ave. R. R. Co., 162 N. Y. 193.

She is not entitled to recover in an action for personal injuries for loss of time which she devotes to household services, although not living with her husband, and earning her own living. Thuringer v. N. Y. C. & H. R. R. R. Co., 71 Hun, 526, 55 St. Rep. 87, 24 N. Y. Supp. 1087.

She cannot maintain an action to recover compensation for the loss of her husband's support and companionship, resulting from injury to him caused by negligence. Goldman v. Cohen, 30 Misc. Rep. 336, 63 N. Y. Supp. 459.

Art. 2. Married Women.

She may maintain an action, in her own name and for her own benefit, without joining her husband as party, against one who has enticed him from her, alienated his affections, and deprived her of his society. Bennett v. Bennett, 116 N. Y. 584.

SUBDIVISION 4.

Action by Husband for Injuries to the Wife.

A husband may maintain an action for loss which he has sustained by reason of a personal injury inflicted upon his wife. He may recover for the loss of his wife's society, or of her services, or both, and also the expenses necessarily incurred by him in consequence of the injury. Buswell Law of Personal Injuries, $ 14.

Where the injury to the wife is such that the husband receives a separate loss or damage, as where he is put to expense or is deprived of the society or the services of his wife, he is entitled to recover therefor, and may bring a separate action in his own name. 15 Am. & Eng. Encyc. of Law (2d ed.), 861.

The services of the wife in the household in the discharge of her domestic duties still belong to the husband, and in rendering such service she still bears to him the common-law relation. So far as she is injured so as to be disabled to perform such service for her husband, the loss is his and not hers; and for such loss of service he, and not she, can recover of the wrongdoer. But when she labors for another, her service no longer belongs to her husband, and whatever she earns in such service belongs to her as if she were a feme sole, and, so far as she is disabled to perform such service by any injury to her person, she can in her own name recover a compensation against the wrongdoer for such disability as one of the consequences of the injury. Brooks v. Schwerin, 54 N. Y. 343 (348).

In Uransky v. D. D., E. B., etc., R. R. Co., 118 N. Y. 304, it is said that presumptively damages for negligently diminishing the earning capacity of a married woman belong to her husband, and it is held that where she seeks to recover such damages, the complaint must allege that for some reason she is entitled to the fruits of her own labor or that she was engaged in business on her own account, and by reason of the injury was injured therein. See Matter of Callister, 153 N. Y. 294.

Art. 3. Lunatics.

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ARTICLE III.

LUNATICS.

A committee of a lunatic may maintain, in his own name, adding his official title, any action or special proceeding which the person, with respect to whom he is appointed, might have maintained, if the appointment had not been made. Code, § 2340.

Insanity is a disability affecting the statute of limitations. See Code, 375, 392, 396.

A lunatic or idiot may be discharged from arrest as a privileged person in the discretion of the court. Code, § 554.

Cases requiring proof of fraud, malice, or negligence would, perhaps, create no difficulty where the defendant was a person so unsound of mind as not to be accountable to the criminal law; an action of tort could hardly be maintained. A madman may, indeed, be guilty of fraud or malice in some sense (cunning, it is well known, is a common trait of the insane), but not in the sense in which it would be necessary to create liability, as e. g., in an action for deceit or for malicious prosecution. Bigelow on Torts (7th ed.), § 69.

Underhill on Torts (7th ed.), 50, it is said: "Every person who commits a tort not depending on fraud or malice, and not arising out of the performance of a contract, is liable to be sued, notwithstanding infancy, coverture, or unsoundness of mind."

In those cases where intent is immaterial there is abundant authority for saying that insanity constitutes no defense. Bishop, 507.

Speaking of the reasons against considering insane persons responsible for their torts, Cooley (2d ed., p. 116) says: "If his mental disorder makes him dependent, and at the same time prompts him to commit injuries, there seems to be no greater reason for imposing upon the neighbors or the public one set of these consequences rather than the other; no more propriety or justice in making others bear the losses resulting from his unreasoning fury when it is spent upon them or their property, than there would be in calling upon them to pay the expense of his confinement in an asylum when his own estate is ample for the purpose. Speaking of other reasons for the rule imposing liability

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