
    Ann Fitzgerald, Resp’t, v. Charles Quirk Quann, App’lt,
    
    
      (Court of Appeals,
    
    
      Filed Jane 5,1888,)
    
    1. Husband and wife—Husband liable for torts of wife.
    The common law liabiliiy of a husband for the torts of his wife has not been abrogated in this state. It is necessary to join the husband as a defendant with the wife, in an action brought against her for her torts.
    S. Common law—Statutes changing strictly construed.
    Statutes changing the common law must be strictly construed, and the common law must be no further abrogated than the clear import of the language used in the statutes absolutely requires.
    Appeal from a judgment of the supreme court, general term, fourth department, reversing an order made at the Livingston circuit, setting aside a verdict in favor of the plaintiff, and dismissing the complaint as to the defendant, Charles Quann.
    
      James Wood, for appl’t; Treadwell Cleveland for resp’t.
    
      
       Affirming 33 Hun, 652.
    
   Peckham, J.

The very satisfactory opinion delivered by the learned justice at the general term when this case was before that court, renders it unnecessary to enter upon any general discussion of the question in this court.

The counsel for the defendant in his argument before us conceded the rule to be well established and almost universally acted on that statutes changing the common law must be strictly construed, and that the common law must be held no further abrogated than the clear import of the language used in the statutes absolutely requires. However much modern judges might sometimes be inclined to doubt the beneficial results to be derived from an always strict adherence to the rule, grounded upon some possible doubts of the high order of excellence in all cases of the common law, or of its being without exception the perfection of human reasoning in any other than a very narrow, technical and one sided way, yet the rule itself is too securely and firmly established and grounded in our jurisprudence to be altered other than by legislative interference. This court acted upon such rule in the late case of Bertles v. Nunan (92 N. Y., 152), and because there was no statute which plainly altered it, the common law was held in that case to remain the law in this state in regard to the conveyance of real estate to a husband and wife jointly, and that upon the death of either the survivor took the whole estate.

It is claimed, however, that there is an express enactment abrogating the common law in regard to the liability of a husband for the torts of his wife, and that such enactment is to be found in chapter 172 of the Laws of 1862, entitled “An act to amend the act entitled an act concerning the rights and liabilities of husband and wife; passed March 20, 1860.” The court is referred to section 7 of the act which reads, “A married woman may be sued in any of the courts in this state, and whenever a judgment shall be recovered against a married woman the same may be enforced by execution against her sole and separate estate in the same manner as if she were sole.”

This section clearly does not reach any such result. It evidently contemplates the existence of causes where it would be proper to sue a married woman alone, for the provision making her sole and separate estate liable on execution upon a judgment recovered against her would lead one to that inference. But the section does not assume to state what those causes are. This is done in the third section of the same act, which amends the seventh section of the act of 1860, and in this amended section it is stated that “a married woman may, while married, sue and be sued in all matters having relation to her sole and separate property, or which may hereafter come to her by descent, devise, bequest, purchase or the gift or grant of any person, in the same manner as if she were sole; and any married woman may bring and maintain an action in her own name for damages against any person or body corporate for any injury to her person, or character, the same as if she were sole,” etc. In the subsequent section of the act of 1862 (section 5), it is provided that in an action brought or defended by any married woman in her name, her husband shall not, neither shall his property be hable for the costs thereof or the recovery therein. It is thus seen that in a statute which legislates upon the subject of the rights and liabilities of husband and wife a portion of one section treats of the rights of the wife as to suing and being sued “ in the same manner as if she were sole,” and the cases are stated in which she may be thus sued, and the case of a tort committed by her during coverture for which a suit is brought (also during coverture) is not embraced therein.

This brief examination of the statute makes it still clearer that the seventh section above quoted did not assume to enact that a married woman was to be sued alone in all cases, but simply that when suable she could be sued in any of the courts of the state. We think there was no express legislation in this act which alters the common law in relation to this question.

It is claimed, however, that section 450 when taken in connection with section 1206 of the Code alters the rule. Section 450 reads: “In an action or special proceeding a married woman appears, prosecutes or defends, alone or joined with other parties, as if she was single. It is not necessary or proper to join her husband with her as a party in any action or special proceeding affecting her separate property.” The second sentence of the above section was added in 1879. If it be assumed that without it, the first sentence of the section had made an alteration in common law, and that under such first sentence a married woman was to be sued alone in all cases as if she was single, we think the addition of the second sentence places the law where it was before the passage of any part of the section.

Some meaning must be given the words and some purpose attached to the legislative will, if it be possible to do so. That meaning and purpose are, as it seems to us, to state the cases in which it is not necessary to join her husband under the provisions of the first sentence of the section. If it were not intended to effect an alteration to that extent and in that manner, it cannot be seen what earthly purpose is effected by the amendment. The section as it stood before the amendment, certainly rendered it unnecessary to join her husband with the wife in cases affecting her separate property, and unless the effect of the amendment be to state those cases where such joining is unnecessary, leaving it necessary in all other cases, it is difficult if not impossible to give any sense or meaning to the amendment.

In our opinion such is and was intended to be the effect of the amendment, and unless in cases affecting her separate property, a married woman should be sued with her husband. This result is not affected by the language of section 1206 of the Code, which reads thus: “Judgment for or against a married woman may be rendered and enforced in a court of record, or not of record, as if she was single.” This section refers, as it states in plain language, to the enforcement of a judgment against a married woman, and has no reference to the question of when it is proper or necessary to join her husband in suits against herself.

This brief summary is all that it is thought necessary to say on this subject in addition to what has been so well said at the general term. It is not possible to reconcile the various decisions of the supreme court upon this question, nor do we regard it as of very great importance which way it is decided.

_ We cannot see with the clearness necessary for an alteration of the common law, that the various statutes upon the subject of the rights and liabilities of married women, have by their general scope, bearing and effect, by necessary implication, as claimed by counsel, altered the law and rendered it unnecesssary to join the husband with the wife in such a case as this. A lengthy discussion of those acts and of the reasons which lead us to this conclusion, would serve no useful purpose, and will, therefore, not be entered upon.

The judgment appealed from should be affirmed, with costs.

All concur, except Danforth and Finch, JJ., dissenting.  