
    OWEN a. CAWLEY.
    
      Supreme Court, First District ;
    
    
      General Term, October, 1861,
    Married Woman’s Separate Estate.—Services of Attorney.—Witness.—Husband and Wife.
    In an action to charge the separate estate of a married woman, either the intention "to charge the estate must appear in the contract on which the action is brought, or such intention must be inferable from a direct benefit to the estate.
    
    
      In an action to charge the estate of a married woman for services as attorney in suits brought for her, the question whether the suits were for the benefit of the estate is to be determined by the intent of commencing them rather than by the result. Per Gould, J., and Clerke, P. J.
    In such an action, the husband, being also defendant, is, under the act of 1860, a proper witness to prove his agency in employing the plaintiffs for his wife, and its extent, as well as all facts concerning their employment. Per Gould, J.
    
      Appeal from a judgment.
    The defendant, Jane F. Cawley, carried on the business of ship-chandlery in the city of New York, and owned real property, separate from her husband, in Queens county.
    
      Her husband conducted the business in Hew York, and managed the same in all its details, as her agent.
    He employed the plaintiffs, as attorneys, in various matters pertaining to his wife’s business, and this action was brought by them to recover .for their services out of her separate estate. The husband was made a party defendant.
    The defence was, that by special agreement, the husband, and not the wife, was to pay for the services, and at certain special rates.
    The cause was referred to Hon. Wm. Mitchell, who found, in his report, that the services were rendered for the benefit of the wife’s separate estate, and, as matter of law, that the plaintiffs were entitled to judgment against her separate estate for the balance due them.
    On the trial, the referee excluded the testimony of the husband. , From the judgment the wife appealed.
    
      Dennis McMahon, for the appellants.
    —I. The separate estate of Jane F. Cawley, which was sought to be charged, was evidently not a trust-estate. The complaint alleged, and the answer admitted, that the said Jane was possessed, in her own right, separate from her husband, of real and personal property, &c. This is the usual allegation when the wife is seized of property of her own, not under a marriage contract or trust. No trust-deed is given in evidence.
    II. If such was the nature of her estate, then the report of the referee is erroneous and should be reversed; because—1. No proof was shown before the referee that the marriage of the appellants took place after the enabling acts of 1848 and 1849; "consequently those statutes would not invest her with any power over her personal estate. (Holmes a. Holmes, 4 Barb., 295 ; White a. White, 5 Ib., 474 ; Westervelt a. Gregg, 2 Kern., 202.) 2. Even were it conceded that the enabling acts of 1848 and 1849 gave her the power of disposition of her realty and personalty, yet they gave no power to her to make contracts, or enter into bargains of employment of "the plaintiffs below, binding her in any shape or form whatever. (Gates a. Brower, 5 Seld., 205 ; Vansteenburgh a. Hoffman, 15 Barb., 28 ; Switzer a. Valentine, 4 Duer, 96 ; Yale a. Dederer, 18 N. Y. (4 Smith), 265 ; Hauptman a. Catlin, 1 E.D. Smith, 729.) 3. Nor do the enabling acts of 1848 and 1849 give any power to any married woman to act as a sole trader, and conduct a mercantile business in her own name as such (Freeman a. Orser, 5 Duer, 476) ; nor to invest her husband with power to act as her attorney in the transaction of any such business. (Oulds a. Sansone, 3 Taunt., 251 ; Birdseye a. Flint, 3 Barb., 500, 510 ; Hunt a. Johnson, 19 N. Y. (5 Smith), 279.) The act of 1860 (p. 157), for the first time, gave married women authority to act as sole traders, except in the cases specified at common law; and all the transactions here occurred before that act. (See Lovett a. Robinson, 7 How. Pr., 107.)
    III. Her husband,’ conducting the business in the name of, and as attorney far his wife,—the wife having.no authority to make bargains in person or by agent, or to act as a sole trader,— was, in fact, doing business for which he alone was responsible. (Curtis a. Engel, 2 Sandf. Ch., 287 ; Gates a. Brower, 5 Seld., 205 ; Petty a. Anderson, 3 Bing., 170 ; Lovett a. Robinson, 7 How. Pr., 107.)
    IY. The referee erred in considering Mrs. Cawley’s estate as held by virtue of a trust, and that, in equity, she had a right to charge that estate for services rendered for its benefit. Yet, if it be conceded that it was a trust-estate, then the only valid estate could be one vested in trustees, since the Revised Statutes, who alone could charge it. (Noyes a. Blakeman, 3 Sandf., 540, 541.) The beneficiary could not create any lien thereon. (Lamoureux a. Van Rensselaer, 1 Barb. Ch., 36.) She certainly could not affect her separate estate without an express appointment indicating such intention. (Vanderheyden a. Mallory, 1 Comst., 452 ; Rogers a. Ludlow, 3 Sandf. Ch., 104.)
    V. Even were the estate such that she could charge it, yet no evidence was given of any employment by her of the plaintiffs below. And a husband cannot take a power of attorney from his wife, and thereby charge her separate estate. (Birdseye a. Flint, 3 Barb., 500.) Where a woman owns real estate, the title of which is vested in her, the only way she can charge it, is by a deed or mortgage acknowledged by her before a commissioner, separate and apart from her husband, and she must state that it is done through no fear or compulsion of her husband ; yet the decree in this case is, that all her estate, including the lot in Queens county, must go in the hands of the receiver,—thus being a judicial disposition of her estate on her mere contracts. (Knowles a. McCamley, 10 Paige, 342 ; Ackert a. Pultz, 7 Barb., 386.)
    VI. The referee erred in ruling out Samuel B. Cawley as a witness for his wife. The amendment of 1860 (Laws of 1860, 789) appears to concede the right to admit a husband and wife as witnesses for each other.
    
      John Owen, for the respondents.
    —I. The referee properly excluded the husband, when offered as a witness for the wife, the trial being before the act of 1860. (Hasbrouck a. Vandervoort, 4 Sandf., 596 ; affirmed, 5 Seld., 153 ; Macondray a. Wardle, 26 Barb., 612 ; Hearne a. Waring, MS. opinion of Justice Hoffman, in Gen. T. of N. Y. Superior Court, June, 1860, approving 26 Barb., 612 ; Gale a. Gale, MS. opinion of Justice Strong, in Gen. T., 6th Dist., cited in 30 Barb., 520.)
    The cases, Marsh a. Potter (30 Barb., 506) and Shoemaker a. McKee (19 How. Pr., 86), though apparently in conflict with some of the cases cited, do not alter the doctrine established as applicable to this case. The former was a case of tort against husband and wife jointly, and both were necessary parties. In this case, the husband is not a necessary party,—is only joined pro forma,—and the judgment is against the wife’s separate property only.
    It is conceded, in the case of Marsh a. Potter, that in actions between one of them and a third person, the one is not á competent witness for or against the other. (30 Barb., 524.) And the doctrine is well established, that “ a person incompetent to testify for a party cannot be rendered competent by being made a party.” (Macondray a. Wardle, 26 Barb., 614; Symonds a. Peck, 10 How. Pr., 395; Pillow and wife a. Bushnell, 5 Barb., 156.)
    The case of Shoemaker a. McKee goes no farther than to permit the wife to be a witness in her own behalf, by force of the words of the statute in section 399 of the Code; and the court, in that decision, seems to assume that neither could be witnesses for or against each other. (See opinion of Balcom, J., p. 89.)
    II. The conclusion of the referee, that the separate estate of the defendant, Jane F. Cawley, was liable for the claim and costs, and that judgment therefor should be entered against the same, is in conformity with Yale a. Dederer (22 N. Y., 450. See opinion of Selden, J., p. 460 ; and see Dickerman a. Abrams and wife, 21 Barb., 551 ; Simmons a. McElwain, 26 Ib., 419 ; Colvin a. Currier, 22 Ib., 371.)
    
      
       In the case of Young a. Gori (Supreme Ct., First District; At Chambers, September, 1861), the right of a married woman to make contracts, and sue and be sued thereon, under the act of 1860, was discussed and maintained. ' The action was against a married woman, who was transacting business on her own account, to recover for goods sold her.
      The cause came up on demurrer to the complaint.
      Baiinabd, J.—The questions in this case arise under the Act of 1860, relating to married women.
      
        The Legislature have been, since 1848, endeavoring to place married women on the same footing as single women ; and the recent decisions of the Court of Appeals show that that court is inclined to carry out the intent of the Legislature. The provisions of the statute bearing on this case are as follows: The second section authorizes a married woman to carry on any trade or business, and to bargain, sell, assign, and transfer her separate personal property, the earnings from her trade or business to be her sole and separate property, and to be used or invested by her in her own name.
      Section 8 provides, that no bargain or contract entered into by any married woman, in and about the carrying on of any trade or business, under the statutes of this State, shall be binding on her husband, or render him or his property in any way liable therefor.
      Section 7 provides, that a married woman may sue, and be sued, in all matters having relation to her separate property, in the same manner as if she was sole.
      The first question that arises is, whether a married woman carrying on a business can, in the course of that business, make contracts, and enter into engagements which shall be binding on her and her property generally ?
      It is perfectly clear that this statute empowers a married woman to carry on a separate business. Is this a general power to conduct business in the usual manner, or is it circumscribed and limited to a prescribed mode of dealing ? There are no words .of limitation.1- Tlie granting of a power to do any act, without any words of limitation, carries with it a grant of power to do all those acts which are usually incident to the exercise of the principal power.
      A narrow construction of this power to carry on business would greatly impair, if not wholly defeat, the object of the Legislature.
      To hold that a married woman could only carry on business on a strictly cash system, would impose such clogs as to render the carrying on of many lines of business almost impracticable, and would absolutely debar her from others. In all business it is necessary to have assistants employed by the week, month, or year, and in some it is necessary to have them employed under special contract.
      Again, some lines of business are carried on almost entirely by contract, and some almost entirely on credit; from these she would be in effect debarred.
      If we could, by possibility, hold that the statute meant simply that a married woman might carry on the millinery business, without assistants, buying every thing for cash, and selling entirely for cash, paying the rent and all other incidental expenses in advance, then we might come to the conclusion, that a married woman could make no contract in the course of a business carried on by her which would be binding on her generally.
      The'statute, however, admits of no such construction. The provisions of section 8, that no contract entered into by a married woman in and about the carrying on of any business, shall he binding on her husband or render him or his property in any way liable therefor, impliedly admits that a married woman has power in course of a business carried on by her to enter into contracts binding on her.
      One section says a married woman may carry on business ; a subsequent section says that her contracts made in the course of that business shall not be binding on her husband. The deduction necessarily follows that she may make contracts which shall be binding on her. The next question is, can a married woman be sued at law without joining her husband as party defendant, and without setting out or seeking to charge any specific separate property, upon a contract made by her in the course of her business? Section 7, provides that a married woman may sue and be sued in all matters having relation to her separate property in the same manner as if she were sole.
      It certainly does not require argument to show that in a suit against a feme sole-there is but one defendant, namely, the feme sole herself, and that in such suit no property is set forth as belonging to the defendant, and it is not sought to charge any specific property. If then a suit is brought against a married woman having relation to her separate property, we must, for the purpose of ascertaining who are to be parties defendant and what averments are necessary, ignore the fact that she has, or ever had a husband ; and after devesting her of that appendage, and viewing her as a feme sole, the result is clear. It only remains to be considered whether a suit on a contract made by a married woman, in the course of her business, is a suit having relation to her separate property. The goods purchased by her and the profits are undoubtedly her separate property. The good-will of the business is hers, and the business itself, so far as it can in any sense be deemed property, is hers. Any contract having relation to that business, has relation to that which belongs wholly and exclusively to her, over which her husband has no control, and in which he has no part or lot.
      An action brought for the price of goods sold for her business relates directly to her separate property.
      The goods are her separate property; she either has them or their proceeds, and she is called on to give to their original owner their value. It is a cause of action growing out of a separate dealing.
      The separate property, to wit, the goods, is the very foundation of the claim. The claim grows out of the separate property. ¡
      The transaction which converts the goods into a married woman’s separate property gives birth to the claim for their price. There cannot be a closer relation than this. It results that, when a married woman carries on a separate business under the Act of'1860, she is to be regarded, so far as that business and every thing connected with or appertaining to it, in the same light as a man—to sue and be sued as such.
      Demurrer overruled, with costs, with leave to defendant to answer within twenty days on payment of costs of demurrer.
      The costs to be paid on answering, to be all the costs in the action, except the costs for proceedings before notice of trial,
    
   By the Court.— Ingraham, J.

—I cannot concur in the opinion that all the charges allowed by the referee were properly chargeable on the separate estate of Mrs. Cawley. The decision in Yale a. Dederer (22 N. Y., 450) holds that the intention to charge the séparate estate must be stated in the contract itself, „ or the consideration must be one going to the direct benefit of the estate. I am not disposed to extend the rule any further than the Court of Appeals have laid it down. Applying this rule to the present case, I am at a loss to see how bringing an action for a married woman, which fails, presents a consideration going to the direct benefit of the estate. I suppose the court intended that where the intent to charge the separate estate was not stated in the contract, it might be inferred from a direct benefit to the separate estate. .No such inference can be drawn where no benefit, but an injury, results from the service. If there had been 'but one action, and the married woman had been defeated, with a large bill of costs charged against her, would it in any way be inferred that her separate estate had been benefited by the services rendered?

I forbear commenting upon the fact that the employment was by the husband, and the doubt which might arise whether, even though his agency in the business was admitted, he had any right to bind the separate estate of the wife without her knowledge and express assent. She could not so charge her real estate except by her acknowledged deed, and yet in this case the husband, without proof of her knowledge or assent, is allowed to make such a charge, which binds the real and personal estate.

.Without, however, expressing any opinion now on this point, I am clearly of the opinion that the defendant is not liable for all the services included in this judgment, and think the report should be set aside and the.case referred back to the referee.

The present evidence should stand in the cause, and either party be allowed to produce further testimony.

Gould, J.

—While I think that a suit must be judged to be or not to be for the benefit of an estate by the intent and object of commencing it, rather than by the result, I am not satisfied that in this case the services rendered are a proper charge on the defendant’s real estate. All the facts of the case were certainly not in proof before the referee, or else her estate is not chargeable with all these costs. There is not enough in the case to show that the husband was in fact, and with her knowledge, acting as her agent in the employment; certainly not enough . to show that she intended any such thing as charging her property.

I am disposed to concur in the result of Judge Ingraham’s opinion ; and, besides, to hold that the husband is a proper witness to prove his agency, and its extent, as well as all facts concerning the employment of the plaintiffs: The Act of 1860 (referring to what man and wife, as parties, may testify to), certainly must mean, that the husband or wife may, to some matters, be a witness for or against each other, and I can conceive of no case more proper for admitting such testimony, than one 'where either has acted as the agent of the other in the business in controversy. With the wisdom of making such a law we have nothing to do. But unless we allow it to have effect to this extent, we virtually make it of no effect.

I should reverse the judgment and order a new trial, as suggested by Judge Ingraham.

Clerke, P. J.

—Although a married woman could not have carried on business as a feme sole, previous to 1860, yet the acts of 1848-49 gave her the right to own property, real and personal, in the same manner as if she were unmarried. In this action, the question is not whether Mrs. Cawley or her husband is liable for the debts, or entitled to the profits of a trading concern, but whether she possessed separate property of any . kind; and second, whether the services for which .the plaintiffs claim compensation were rendered for the benefit of that separate property.

I. The referee expressly finds that she did own separate property ; and this is indeed clearly warranted by the admission of the defendants’ answer.

II. In Yale a. Dederer (22 N. Y., 450) a majority of the judges concurred in the opinion that the intention to charge the separate estate must be stated in the contract itself, or the consideration must be one going to the direct benefit of the estate. In the present case, we think the consideration went to the direct benefit of the estate—professional services rendered to recover the claims which constitute the estate, and services directly beneficial to it. The referee has found that the services of the plaintiffs were rendered for the benefit of Mrs. Cawley’s separate estate. This was, perhaps, a mixed question of law and of fact; but if it was exclusively the former, I am disposed to think that the conclusion at which he arrived was correct. It is no answer to say that some of the proceedings commenced on behalf of Mrs. Cawley by the plaintiffs were unsuccessful in the result. If the purpose of those proceedings was to secure claims which she considered belonged to her, or which were due td her, the commencement and prosecution of these proceedings was as beneficial to her as similar services would be to any person who was not a married woman. Whoever undertakes with my consent to establish my legal 'rights, undertakes a service for my benefit; and the want of success in the undertaking, unless it was expressly agreed that compensation depended upon success, would be no excuse for me in refusing compensation. I do not see why such an excuse should be more available in the instance of a married woman, than in that of any other person. The term “benefit” has the same signification in both instances. The faithful and skilful endeavor to serve any one, although not productive of actual profit, is in itself a benefit.

The referee decided correctly in excluding the testimony of the husband.

The judgment should be affirmed with costs.

Judgment reversed. 
      
       Present,' Clerke, P. J., Ingkaham and Gould, JJ.
     