
    Josie Quilty, by Guardian, Resp’t, v. Rebecca B. Battie et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed October 4, 1892.)
    
    1. Animals—Husband and wife.
    Defendants were husband and wife; living together. The husband bought a dog and brought it on the premises, then belonging to him, but afterwards transferred to the wife, who, knowing the dog to be vicious, continued to harbor it on the premises after they became hers. Held, that she had such freedom of control over her own real property that her husband could not, without her consent and against her will, establish and maintain a nuisance upon it, and she was liable for the resulting injury.
    2. Same—Parties.
    The husband is not a proper party defendant in an action against the wife for a trespass committed by her in the care and management of her separate -estate.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff entered upon verdict.
    
      Matthew Hale, for app’lts ; C. C. Van Kirk, for resp’t.
    
      
       Reversing in part 39 St. Rep., 932.
    
   Maynard, J.

The plaintiff has recovered against both defendants, who are husband and wife, for injuries resulting from the bite of a vicious dog. The liability of the wife is disputed on the grounds that she is a married woman; that the dog belonged to her husband, and that she is not responsible for the trespasses committed by it. There is no conflict in the evidence upon any material point affecting her liability. She had been the owner of the premises where the dog was kept since December, 1887. They formerly belonged to her husband, and when she acquired title the dog remained there and was fed and cared for by her. It was shown to have ' had vicious propensities to her knowledge, and on one occasion she interfered to protect it when a person, whom it had attacked, attempted to strike it in self defense. She bore the expenses of the household, and with her husband constituted the entire family. There is no proof in the record that he had any property there, except the dog, or that he had the care or management of his wife’s property, or was in possession of it as her tenant, or assumed to control or direct her with respect to the domestic animals which should be kept upon the place.

As stated in Addison on Torts (D. & B. ed., p. 230), it is not material, in actions of this character, whether the defendant is the owner of the dog or not. It is enough for the maintenance of the action that he keeps the dog; and the harboring a dog about one’s premises, or allowing it to be, or resort there, is a sufficient keeping to support the action. As soon as such an animal is known to be mischievous, it is the duty of the person whose premises it frequents to send it away or cause it to be destroyed.

The trial judge charged the jury, in substance, that if the dog was vicious and Mrs. Battie knew it, and with such knowledge of its viciousness kept and harbored it upon her premises, she was liable for the injury which plaintiff had sustained. It is not denied that this instruction was unexceptionable, unless the defendant was relieved from liability because of the fact that the dog was the property of her husband, and that he lived with her in the house and upon the premises where it was harbored and kept. A vicious domestic animal if permitted to run at large is a nuisance, and a person who knowingly keeps or harbors it, and thus affords it a place of refuge and protection, is liable for the maintenance of a nuisance, and for all the damages directly resulting from it. The question, therefore, presented by this appeal, when plainly stated, is, whether a married wonjan under the laws of this state has not such freedom of control over her own real property that her husband can, without her consent and against her will, establish and maintain a nuisance upon it.

The form in which it here arises most favorable to the appellants, is upon their request for an instruction to the jury that the husband is the head of the family and controls what domestic animals shall be admitted to the household, or kept about the house; to which the trial judge responded: “Iso charge where the husband is the owner of the property, but where the wife is the owner of the property; I decline to charge that.”

The married woman’s act of 1848 (chap. 200, amended by chap. 875 of 1849), empowered Mrs. Battie to take and hold this real property to her sole and separate use, and to convey and dispose of it and its rents issues, and profits in the same manner and with like effect as if she was unmarried; and declared that it should not be subject to the disposal of her husband, or liable for his debts.

There does not seem to be much room for doubt as to the scope and object of this legislation. It effectually removed the common law disability of the wife, which deprived her of the possession and control of her property during coverture; and, to that extent, it extinguished the common law rights and powers of the husband. Because it is in derogation of his common law privileges it is to be rigidly applied and not extended by implication beyond its strict letter; but it is also a remedial act, and as to its clearly expressed subject-matter it should have a liberal construction. Full and absolute ownership of all property which the wife might have or acquire, with all its incidents, privileges and burdens, was evidently conferred upon her by this statute. In the acquisition and enjoyment of such property, she shall be deemed to be an unmarried woman. Marital control of it was completely abrogated ; not a trace of it was permitted to remain.

Her husband is thus placed upon the same footing as a stranger, and has no greater authority than a stranger to impose a burden upon her separate estate, or to restrict, or embarrass her in the exercise of exclusive dominion over it Afterwards came the act of I860, chapter 90, amended by chapter 172 of 1862, which materially enlarged her rights and powers; and, among other things, provided that her property should, notwithstanding her marriage, be and remain her sole and separate property, and might be used, collected and invested by her in her own name, and should not be subject to the interference or control of her husband. Eor was she left powerless to enforce these newly acquired rights. Section 3 of the act of 1862, subsequently incorporated into § 450 of the Code, provided that in all matters relating to her separate property she might sue and be sued as if she . were sole. She has the same remedies to prevent or restrain her husband from unlawfully interfering with her property as she has against any other person. -If he keeps upon her premises a ferocious animal, she has the same authority of law to protect herself against this infringement of her property rights as against a like trespass by a neighbor.

In Minier v. Minier, 4 Bans., 421, the general term of the third department, held that the wife could maintain ejectment against her husband, and Judge Parker, in his opinion, says that it is both logical and reasonable to construe the acts of 1860 and 1862 “ as entitling her to bring just such a suit against her husband in relation to her property as she may bring against any other person.” And as to her property, he further says: “ The relation of husband does not affect it; as to it, the parties are strangers to each other.”

In Baum v. Mullen, 47 N. Y., 579, Chief Judge Church, in commenting upon the effect of the act of 1$62, says that with respect to her own property, the wife “is to be treated as unmarried. All the rights of an unmarried woman are conferred upon her, and all correlative obligations are imposed. The statute has -declared equality of rights, and equality of obligations and duties; and courts have no alternative but to enforce both. The wife is liable in the same manner and to the same extent for frauds or torts committed in the management of her property as she is upon contracts relating to it.”

In Rowe v. Smith, 45 N. Y., 230, the wife was held liable for damages resulting from the trespasses of her cattle, which had strayed from her premises to the lands of another, upon the ground that the same duty was imposed upon her, with respect to the care cf her property, as upon others, and Judge Andrews, in his opinion, puts and answers the question which is directly involved in this case. At page 233, he says: “ If the defendant should permit a nuisance upon her premises to the injury of her neighbor, would she not be liable in an action for the injury ? The unlawful use permitted by her of her separate estate, in the case supposed, would make the action one relating to her separate estate, and in this case the violation of the duty incident to the ownership of the property has, we think, the same result, and brings the action within the intendment of the statute.”

It must be borne in mind that we are not dealing with a case where a domestic animal is a trespasser upon the wife’s property, or where the husband may have brought it and maintained it there without her consent. The jury found that she kept and harbored it upon her own premises; and the evidence is sufficient to support the finding. She could at any time have required him to remove it, and could have caused it to be destroyed, if compliance with the request had not been promptly granted. There was no actual coercion here and none can be implied. She not only assented to the maintenance of the dog upon her premises, but voluntarily assumed the burden of it. The provisions of the statutes we' have been considering relate exclusively to the property rights of the parties to the marriage contract. Other marital rights are not affected by them: The husband is still the head of the family ; the master of the house. He is entitled to the help and companionship of the wife; the control 'and discipline of his children, and^ the regulation of 'the domestic affairs of the house-' hold. He may require the family to live with him in such suitable home as he may provide; but if by the grace of his wife he maintains a home upon her property, he cannot use such property in any way not assented to by her. All such conjugal rights are unimpaired, but the right to keep a vicious animal upon his wife's premises without her.permission is not one of them, unless there is some rule of the common law, which we have not "been able to discover, that regards a dog as a necessary part of the equipment of a well ordered household.

We are referred to three cases in the supreme court of Massachusetts, Com. v. Wood, 97 Mass., 225; Com. v. Carroll, 124 id., 30; Com. v. Pratt, 126 id., 462, but the decision of each was put upon grounds entirely consistent with the views we have here expressed. They hold that the husband may, in the exercise of his conjugal authority, prohibit the use of the house, which is the home of his family, for immoral or criminal purposes, even when it is upon-the premises of his "wife; for he may determine who shall visit the house, and it is his duty for the good of the family to prevent dissolute and criminal characters from resorting to it, and if he fails in the discharge of this duty, and the house becomes disorderly or' it is employed for the purpose of violating the excise laws, he becomes criminally responsible as the keeper of a disorderly house, or of a place where intoxicating liquors are sold contrary to law. In Com. v. Wood the court say : “ How far he may exercise force in restraining her is n.ot precisely settled. But there can be no doubt that he may exercise as much power as may be reasonably necessary to prevent her, as well as other inmates of the house, from making it a brothel.”

It will be seen that the right to control her in the lawful use which she shall make of her property was not involved. It was a question of the extent of the conjugal authority of the husband over the members of his family of which no legislation has yet attempted to deprive him.

The defendant, -Joseph M. Battie, has also appealed from the,, judgment against him. He has been made liable, not on the ground that he was the owner of the dog, or that he co-operated with his wife in the commission of a wrong, but solely on the ground of his marital liability for the torts of his wife. The principles we have applied for the purpose of sustaining this judgment against her necessarily require his exemption from liability as her husband. Under proper allegations and proofs, he who owns and he who harbors a vicious animal may both be made responsible for a resulting injury in the same action. But there is no averment in the complaint that he was the owner of the dog or knew of its vicious habits. At the commencement of the trial he moved for a dismissal of the complaint as to him, which motion was improperly denied. This error might perhaps be disregarded or cured by amendment, if the jury had found that he had knowledge of the vicious propensities of the dog; but that question was not submitted to them, and without a finding to that effect we do not see how his liability has been established.

As the law was in 1889, when this cause of action arose, the husband was required to respond for what were called the personal torts of the wife; but a trespass committed by her in the care and management of her separate estate was not classed among such wrongs, and it has been repeatedly held that in such cases the husband was not a proper party defendant. Rowe v. Smith, 45 N. Y., 230; Baum v. Mullen, 47 id., 577 ; Fitzgerald v. Quann, 109 id., 441 ; 16 St. Rep., 395; Mangam v. Peck, 111 N. Y., 401; 19 St. Rep., 78.

The judgment must be affirmed as to the defendant Eebecca B. Battie, with costs, and reversed as to the defendant Joseph M. Battie, and the complaint dismissed as to him, with costs in all courts.

All concur.  