Genenz v. De Forest

Headnote

.An action for injury from the bite of a dog, harbored by a married woman, is not an action affecting her separate estate, and her husband must be made a party defendant thereto, although imane

Appeal by the plaintiff from a judgment of nonsuit, after a trial •■at the Rensselaer Circuit.

The action.was brought to recover damages sustained from the bite of a dog, alleged to have been harbored by the defendant. The ■defendant alleged in her answer that she was a married woman, .and proved it on the trial.

The court at General Term said: “In the case of Fitzgerald v. Quamm,, lately decided by the Court of Appeals, affirming the same ■case in 33 Hun, 652 , the court say that, ‘ except in cases affecting her separate property, a married woman should be sued with her husband.’ That was an action for slander. This is an action for injuries caused by plaintiff’s being bitten by a dog, which did not •belong to defendant, but which the proof showed to have been on premises occupied by her and which the plaintiff claimed to have been harbored by her. The dog which bit in this case was no more the woman’s separate estate than the tongue which uttered the .slanders in the other. We think that case is decisive of this. If that case is not quite in harmony with Rowe v. Smith ( 45 N. Y., 230 ), the later decision should be followed. We think the objection was sufficiently stated in the answer to allow defendant to avail herself of it upon the trial.

“The plaintiff urges that the fact that a committee has been ■■appointed for the husband, and that this defendant is such committee,

takes this case out of the rule as now settled by the Court of Appeals.. We think not. It is remarked in the opinion, in that case, that it is not of very great importance how the question is decided. And it is not worth while to begin to make exceptions to a plain rule.” * * *