
    HARRIET C. STEVENS, Appellant, v. HOMER BOSTWICK, Administrator, etc., Respondent.
    
      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.
   E. Darwin Smith, J.:

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. Coverture must be pleaded, to be available, if intended to be set up as a defense,

In Hallock v. De Munn, where it was held, that, to maintain 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. 
      
       Freaking v. Rolland, 53 N. Y., 422.
     
      
      1st Chitty’s Pleadings, 449; Dillaye v. Parks, 31 Barb., 132.
     
      
       2 N. Y. Sup. Ct., 350.
     