Mangum v. Peck — 6 N.Y. St. Rep. 62

Majority

p. 62

Sylvester S. Mangum et al., as Ex’rs, etc., Resp’ts, v. Ellen K. Peck and Richard W. Peck, her husband.

(Supreme Court, General Term, Second Department,

Filed December 14, 1886.)

Headnote

Husband and wife—Husband’s liability for torts of wife.

The defendant E. IC. P., a married woman, presented to the plaintiff a •bond and mortgage, purporting to have been 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 husband did not participate in the transaction in any manner. In an action against husband and wife, a judgment having been rendered in favor of the plaintiff against the defendants: Held, that the liability of the husband to be joined as a co-defendant with his wife in an action for her personal torts and trespasses resulted from the suspension of her legal existence during her coverture. A married woman could not be sued separately, and unless the husband we. e joined with her in the action a party sustaining an injury would have been without remedy. That though the reason for joining the husband with the wife had ceased in this state, yet the question being in doubt, tne judgment holding the husband liable would be affirmed.

Appeal from a judgment entered on a verdict rendered in favor of plaintiff and against defendant at the Kings county circuit, and from an order denying defendant’s motion for a new trial on the judge’s minutes, and from an order denying a motion for judgment notwithstanding the verdict.

Henry A. Meyenborg, for app’lts; Hearts, Choate & Beaman, for resp’ts.

This is an action against husband and wife for the recovery of damages resulting to the plaintiff from the fraud of the wife alone. She presented to these plaintiffs a bond and mortgage for $4,000, purporting to have been executed by her husband, but which were in fact forgeries, and under false representations that they were genuine instruments, induced the plaintiffs to loan the money thereon.

There is no claim of any participation of the husband in the transaction in any manner. He did not instigate or authorize the fraud, had no knowledge of its execution until after its consummation, and received none of its proceeds.

The action is prosecuted upon the theory that the torts and wrongs of the wife committed during coverture are imputed to the husband, and that an unqualified liability is cast upon him by the law for the resulting consequences, and there is much in the elementary books and opinions of judges to justify the action and the recovery that has been obtained.

The liability of the husband to be joined as a co-defendant with his wife in action for her personal torts and trespasses,

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resulted from the suspension of her legal existence during her coverture. A married woman could not be sued separately, and a party sustaining an injury from her wrongs would have been without remedy if the husband could not be joined with her in an action, and for that reason the husband was joined.

It would seem 1 jw that no such reason exists in this state, and that there is no occasion for joining the husband with his wife in an action for her torts, because she may be sued alone, her common law disability in that respect having been released by modern • legislation tending to the emancipation of the wife from the husband’s control.

We are inclined to that view, and to hold that the simple entry into the marriage relation can entail upon a husband no consequence such as the plaintiffs endeavor to force upon the husband in this action.

But the question has been decided both ways by the supreme court, and will not be set at lest until it is finally determined by the court of appeals, and as it is well presented by this case, we think it better to facilitate a direct appeal to the court of appeals by an affirmance of this judgment.

The judgment should be affirmed, with costs.

Barnard, P. J., concurs; Pratt, J., not sitting.