Majority
p. 78Sylvester S. Mangan et al., Executors, etc., Resp’ts, v. Richard W. Peck, Impleaded, App’lt.[1] (Court of Appeals, Filed November 27, 1888.)
Headnote
Husband and wife—Husband’s liability fob tobts of wife.The defendant’s wife presented to the plaintiff a bond and mortgage purporting to have heen executed by her husband, which were in fact forgeries, and under false representations that they were genuine instruments induced the plaintiff to loan money thereon. The husbanddid not participate in the transaction in any manner. In an action against the
p. 79
husband and wife, a judgment having been rendered in favor of the plaintiff against the defendan , Held, that the husband was liable for the tortious acts committed by his wife. That the plaintiffs had a perfect cause of action against the husband-for the losses occurring to them as the direct result of the fraud and deception practiced by her upon them. (Following Mtegerald v. Quann, 1Ó9 N. Y., 441, and 16 N. Y. State Rep., 398.)
Appeal from a judgment of the supreme court, general term, second department, affirming a judgment in favor of the plaintiffs, entered on a verdict rendered by the jury at the Kings county circuit court.
The action was brought to recover damages against defendant Richard W. Peck, and Ellen E. K. Peck, his wife, for the torts committed by the latter.
The proofs showed that an application was made to these plaintiffs for a loan of $4,000, by defendant, Ellen Peck, representing herself, as acting for her husband. During the negotiation, and as authority for her acts, she presented a letter purporting to come from her husband. She delivered & bond and mortgage to the plaintiffs as security for the loan, purporting and represented by her to be executed by her husband. • She was not authorized to effect the loan, and the letter, bond and mortgage were admitted to be forgeries, and in an action between these same parties, the latter instruments were adjudged to be forgeries and void as against the husband, and the mortgage was cancelled of record. Pending the action referred to, these plaintiffs instituted a suit to foreclose their mortgage; which Richard Peck successfully defended, alleging the forgeries. These plaintiffs obtained a verdict for the expenses incurred in the prosecution and defense by them of the actions, and for the :$4,000, with interest thereon, advanced by them on the faith of the pretended mortgage.
Prom the judgment entered on that verdict and from an order denying a new trial, this defendant appealed to the general term; which affirmed the judgment and order. Prom that judgment of affirmance, the defendant appealed to this court.
Henry A. Meyenborg, for app’lt; Wm. V. Rowe and Treadwell Cleveland, for resp’ts.
The sole question presented by this appeal is as to the liability of this defendant for the tortious acts committed by his wife, the defendant Ellen, Peck. There is no question but that the plaintiffs had a perfect cause of action for the losses occurring to them as the direct result of the fraud and deception practiced by her upon therm That being the case, it falls within the principle lately .decided by us in Fitzgerald v. Quann, 109 N. Y., 441 ; 16 N.Y. State Rep., 395. In that case, which was an action to recover for the injury caused by the slanderous words spoken by the wife
p. 80
and in which her husband was joined with her as defendant, we held that the common law rule of liability had not been abrogated, either by express legislation or by the provisions of the Code of Civil Procedure. Nothing in the appellant’s case suggests any. distinction in principle between it and that of Fitzgerald v. Quann. The record exhibits no errors upon the trial, and the judgment should be affirmed, with costs.
All concur, except Danforth and Finch, JJ., not voting.