Hatfield v. Todd.

HATFIELD v. TODD.

SUPREME COURT, FIRST DEPARTMENT; NEW YORK COUNTY, SPECIAL TERM, NOVEMBER, 1887.

S$ 493, 514.

Reply-Cannot contain counter-claims—Remedy.

A reply to an answer cannot contain counter-claims.

Cohn v. Husson (66 How. Pr. 150), followed.

Where a reply improperly contains counter-claims the remedy is by motion to strike them out, and not by demurrer. Demurrer is only authorized against new matter not pleaded as a counter-claim. (Decided November 16, 1887.)

Motion by defendant to strike out three paragraphs of the answer setting up counter-claims.

This action was brought to recover $11,250 and interest, balance due upon an account alleged to have been stated between the plaintiff and the defendant, by which it was found that the defendant was indebted to the plaintiff in the sum of $13,500. The answer of the defendant denied each and every allegation of the complaint and set up a counter-claim of $2,628.66 for board, rooms, attendance, etc., furnished by the plaintiff as proprietor of the Hotel Vendome to the plaintiff, at his request. To this counter-claim the plaintiff served a reply, which, beside setting up matters in denial and avoidance of the same, and also alleging payment, pleaded four counter-claims, viz.: First, for services alleged to have been rendered by the plaintiff as an architect, to the defendant, of the value and reasonably worth the sum of $20,715, of which it is stated that there remains due and unpaid the sum of $16,115. Second, for other services as an architect alleged to have been rendered by the plaintiff for and at the request of the defendant, the sum of $20,500. Third, for

Hatfield. Todd.

moneys loaned, and for other work, labor and services performed, the sum of $9,500; and fourth, on an account stated at $16,615, balance of $16,115 and interest. This reply concluded with the following demand for judgment: "Wherefore plaintiff demands judgment against the defendant as demanded in the complaint, and for the sum of $16,115, with interest thereon from the 23d of August, 1886, and for the sum of $20,500, and interest thereon from the 28th of January, 1886, and for the sum of $9,500, and interest thereon from the 28th of January, 1887, and for the sum of $16,115, with interest thereon from the 23d of August, 1887, beside the costs and disbursements of this action."

Arnold & Green, for defendant and motion.

Cited: Code Civ. Pro. § 514; Cohn v. Husson, 66 How. Pr. 150.

Cornelius Fiske, for plaintiff, opposed.

Cited Houghton v. Townsend, 8 How. Pr. 441; Stewart v. Travis, 10 Id. 148; Allen v. Paterson, 7 N. Y. 476; Devlin v. Bevins, 22 How. Pr. 290; Kain v. Dickel, 46 Id. 208; Hall v. Hall, 30 Id. 51.

BARRETT, J.-The motion to strike out the counter-claims from the reply as unauthorized should be granted, with costs. One of the cases cited distinctly approves of such a specific counter-claim whatever may be said of set-offs. I agree with Judge MCADAM's opinion in Cohn v. Husson (66 How. Pr. 150). I also agree that the remedy is by motion.

Demurrer is authorized only against new matter not pleaded as a counter-claim.

Estate of Grove.

ESTATE OF MARGARETTA GROVE, DECEASED.

SURROGATE'S COURT, NEW YORK COUNTY, JANUARY, 1888.

§ § 810 et seq., 2667.

Bond-Husband may act as surety for wife on her bond as administratria. A husband may act as surety upon a bond given by his wife for the faithful performance of her duties as an administratrix; and, it seems that a wife who has a separate estate may be a surety upon the bond of a husband for the faithful performance of his duties as an administrator. [11, 15] Estate of McMaster (12 N. Y. Civ. Pro. 177), disapproved and not followed; [1, 15] Bertles v. Nunan (92 N. Y. 152); [2] Zorntlein ♥. Bram (100 Id. 12); [3] Fairlee v. Bloomingdale (14 Abb. N. C. 341), [4] distinguished; Yale v. Dederer (18 N. Y. 265); [7] Corn Exchange Ins. Co. v. Babcock (42 Id. 613); [8] Third Nat. Bank v. Blake (73 Id. 260), [9] applied and followed.

At common law, the contracts of a married woman were void, and could not be enforced against her; but in equity a married woman having a separate estate has been treated, as to such estate, as a feme sole, and capable of charging such estate in equity with all her debts and obligations. [5.]

It seems, that prior to the enactment of Laws of 1884, chapter 381, a married woman could become a surety for her husband on his promissory note or other obligation if she expressly charged her separate estate, [6, 10] and that, since the enactment of said law, she may become liable on such a contract without even charging her separate estate; [12] that she may form a copartnership with her husband and give notes in the firm name, where the debt was created for property furnished for the benefit of her separate estate; [13] and that she may contract with her husband in relation to her separate estate. [14]

(Decided January, 1888.)

Application to require the administration clerk of the surrogate court of New York county, to accept the husband of the administratrix herein as a surety upon the

Estate of Grove.

bond given by her for the faithful performance of her duties.

The opinion states sufficient facts.

Howard R. Bayne (Maltbie, Bayne & Marshall, attorneys), for administratrix and motion.

The only case reported where a husband has been refused as a surety for his wife is Estate of McMaster, 12 N. Y. Civ. Pro. 177. . . But we respectfully submit that case was improvidently decided and without due consideration. The cases npon which it was decided were not authorities for the decision, and should not have controlled. The citation from 1 Blacks. Comm. 442, merely refers to the well established principle at common law of the disa bilities arising from coverture. It is not an express authority for the position in question. The New York cases cited to support the doctrine that a husband cannot be surety for his wife are not in point, and do not support that doctrine. Since Laws 1867, c. 782, married women have the same right to administer as if single. Matter of Curser, 25 Hun, 579; West v. Mapes, 4 Redf. 496. Any contract, therefore, made with her as administratrix is a contract made in autre droit, and in such right a wife could contract even with her husband at common law. Co. Litt. 112 a. But we contend a husband being surety for his wife is not contracting with her in the sense in which even the spirit of the common law forbade contracts between husband and wife. There is no contract in this case between the husband and wife.

But the law of 1867 as construed in 25 Hun, 579, and 4 Redf. 496 (supra), makes a married woman single for all purposes of administration throughout. No disability of coverture can possibly affect her rights or liabilities under such appointment. For if so, then the rights and liabili ties of the officers of the law depend not upon their office, but upon whether they are married or not. It is her right

Estate of Grove.

to have accepted a good and sufficient surety for the performance of her trust, and if her husband is refused as such merely because he is her husband, then at once the disabilities of coverture are set up against her in the face of the statute passed for the very purpose of removing any such possible objection. It has been expressly held by the court of appeals in this State that a wife can be surety for her husband, and such liability on her part has been repeatedly enforced (see Corn Ex. Ins. Co. v. Babcock, 42 N. Y. 613; Carpenter v. O'Dougherty, 58 Id. 681; Third Nat. Bank v. Blake, 73 Id. 260; Woolsey v. Brown, 74 Id. 82.

Prior to the act of 1884, c. 381, it was necessary that a married woman should expressly charge her separate estate to make the contract of suretyship enforceable against her. This was held in the cases last cited, and the question came up for special consideration and decision in Linderman v. Farquharson, 101 N. Y. 434, where the court refused to enforce the liability of the wife on the ground that she had not been requested by the husband to become his surety, and the contract of suretyship had not existed, and her promise was accordingly entirely without consideration. See page 438.

By the act of 1884 (Laws of 1884, c. 331) it is no longer necessary for the wife, to bind herself, to expressly charge her separate estate. The sweeping changes wrought by this act are apparent at a glance. The effect of them was expressly noticed and acknowledged in the opinion of the court in Linderman v. Farquharson, supra. It is expressly enacted thereby that "a married woman may contract to the same extent, with like effect and in the same form as if unmarried."

The only restrictions to a wife's becoming a surety for her husband recognized by the court in Third National Bank v. Blake, 73 N. Y. 260, and similar cases, being thus by the legislative will completely abolished and swept away, no possible reason exists in law for declining a