Stevens v. Bostwick — 9 N.Y. Sup. Ct. 423

Majority

p. 423

HARRIET C. STEVENS, Appellant, v. HOMER BOSTWICK, Administrator, etc., Respondent.

Headnote

Complaint—Cov&rtwre—when must be set vp in answer.

Where a complaint sets out a cause of action on its face, and the defendant intends to interpose the defense that the plaintiff is a married woman, and has no separate estate, or carries on no separate trade or business, such defense must be set up in the answer.

Appeal from a judgment entered on the report of a referee, dismissing the complaint on the ground that plaintiff was a married woman.

A. C. Slevner, for the appellant.

jPeck & Bowen, for the respondent.

The referee clearly erred, in dismissing the complaint in this action. The complaint set out a cause of action, on its face, in favor of the plaintiff against the defendant. The answer denied the complaint, and set up a counter-claim. If the defendant intended to make the defense, that the plaintiff was a married woman and had no separate estate or carried on no separate trade or business, he should have set up such defense by answer.^[1] Coverture must be pleaded, to be available, if intended to be set up as a defense,^[2]

In Hallock v. De Munn,^[3] where it was held, that, to maintain

* Freaking v. Rolland, 53 N. Y., 422 .

† † 1st Chitty’s Pleadings, 449; Dillaye v. Parks, 31 Barb., 132 .

‡ ‡ 2 N. Y. Sup. Ct., 350 .

p. 424

an action against a married woman, it must be shown that the debt was contracted for the purpose of carrying on a separate trade or business, and for the benefit of her separate estate, the answer, in proper form, set up the defense in a denial of these facts. No question as to the form of the pleadings was presented for consideration.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment reversed and new trial granted, costs to abide event.