Mason v. Mason

, The plaintiff is the husband of the defendant. The complaint charges that the defendant took valuable property from his possession, and converted and disposed of the same to her own use. The case must be considered as if it was the fact that the defendant abandoned the plaintiff. The plaintiff offered proof tending to show it, and it was rejected. It was decided by this court that, if a wife took with her the husband’s property, he could bring an action against his wife. Berdell v. Parkhurst, 19 Hun, 358 . The court of appeals has repeatedly decided that a husband is liable for his .wife’s torts, and this action was dismissed upon the authority of Mangam v. Peck, 111 N. Y. 401 , 18 N. E. Rep. 617 ; Fitzgerald v. Quann, 109 N. Y. 441 , 17 N. E. Rep. 354 . These cases do not conflict necessarily with Berdell v. Parkhurst. The reasoning by which such a result is reached is to the effect that a husband has no remedy, because he is liable as to a stranger to an action for a conversion by his wife of the stranger’s goods. The wife would be liable with her husband to the stranger for her conversion by virtue of the old rule of the common law, not necessarily repealed before. Laws 1890, cc. 51, 248. The wife could hold a separate estate at the time of the wrongful act. If she could increase it by taking wrongfully her husband’s property, .and go away with it, and he have neither action nor relief against her for the recovery back of the same, it would be a case of great hardship. The court of appeals, in Wood v. Wood, 83 N. Y. 575 , held that a wife could bring an action of ejectment against her husband to recover her property unlawfully taken from her. The remedy should be even between them. The exceptions should therefore be sustained, and a new trial granted; costs to abide event.

PRATT, J., concurs. DYKMAN, J., dissents.