
    (34 Misc. Rep. 528.)
    KLAPPER v. METROPOLITAN ST. RY. CO.
    (Supreme Court, Appellate Term.
    April 16, 1901.)
    Husband and Wife—Damages for Negligence—Evidence of Wife’s Earning Capacity—Admissibility.
    Where a married woman claims damages resulting from negligence, and there is no averment or proof that she labored on her own account, evidence of her earning capacity is inadmissible, since the husband is entitled to her services unless rendered on her sole and separate account.
    Appeal from municipal court, borough, of Manhattan, Fourth district.
    Action by Pauline Klapper against the Metropolitan Street-Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed.
    Argued before BISCHOFF, P. J., and CLARKE and LEVEN-TRITT, JJ.
    Gr. Glenn Worden, for appellant.
    Simon Lorincz, for respondent.
   LEVENTRITT, J.

The plaintiff, a married woman, living with her husband, recovered a judgment below for damages resulting from defendant’s negligence. The sole question presented on this appeal is whether the admission of the following testimony on behalf of the plaintiff constituted reversible error: “Q. What were the average amounts of your earnings per week? A. Sometimes a dollar, sometimes a dollar, and a half, sometimes one twenty-ñve and two dollars a day,—eight to ten dollars a week.”. The defendant duly excepted to this testimony, after proper objection taken, and, having developed on cross-examination that the plaintiff was a married woman; living with her husband, moved to strike it out. This motion was denied.

On the proof in this case, the testimony was inadmissible. At common law the husband was absolutely entitled to the Services and earnings of his wife, and neither the enabling act of 1860, nor the broader one of 1884, has affected this right, unless the services and earnings were rendered or received expressly upon her sole and separate account. Holcomb v. Harris, 166 N. Y. 259, 261, 59 N. E. 820; In re Callister, 88 Hun, 87, 34 N. Y. Supp. 628. In Uransky v. Railroad Co., 118 N. Y. 304, 23 N. E. 451, it was said: “Presumptively, damages for negligently diminishing the earning capacity of a married woman belong to her husband, and, when she seeks to recover such damages, the complaint must contain an allegation that for some reason she is entitled to the fruits of her own labor.” In the absence of such an allegation, the judgment there was reversed for error in admitting in evidence the earning capacity of the plaintiff as a dressmaker. In this case the pleadings were oral. In her written bill of particulars the plaintiff states that she had lost in wages “thus far $36.” Conceding the existence of a more liberal rule in the case of oral pleadings, the plaintiff would still have to show by the proof some reason why she is entitled to the fruits of her own labor. What an adequate reason is has been the subject of judicial construction. While it has been held in one case (Brooks v. Schwerin, 54 N. Y. 343), and implied bv dictum in another (Blaechinska v. Howard Mission, 130 N. Y. 497, 503, 29 N. E. 755, 15 L. R. A. 215), that, where the wiie worked for a stranger, that in itself was sufficient to make her earnings for the benefit of her sole and separate account, the better considered view seems to be that the bare fact that she performs services for third persons does not necessarily bring it within the statute. “The true construction of this statute is that she may elect to labor on her own account, and thereby entitle herself to her earnings, but in the absence of such an election, or of circumstances showing that she intended to avail herself of the privilege and protection conferred' by the statute, the husband’s common-law right to her earnings remains unaffected.” Birkbeck v. Ackroyd, 74 N. Y. 356, 358. This case arose under the statute of 1860, but on the point involved the same reasoning applies to the present law. Brown v. Railroad Co., 19 Misc. Rep. 508, 43 N. Y. Supp. 1094 (decided by this court in 1897), is much in point. That was a case in which the plaintiff sued to recover damages for the loss of Ms wife’s services. She testified, without objection, that before the accident she worked as a laundress, earning $1.50 a day. The trial justice refused to charge that the husband had no absolute legal right or claim to the earnings of the wife. Following the Uransky Case, supra, it was held that the earnings of the wife, whether at home or abroad, unless acquired in the pursuit of a separate business, or in connection with her separate estate, presumptively belonged to the husband. It did .not there appear that the wife’s earnings were saved or kept apart by her as a separate estate; she and her husband lived together, “and the presumption is-that her earnings were turned in as part of the family resources.” Page 510, 19 Misc. Rep., and page 1098, 43 N. Y. Supp. In the case at bar the record discloses nothing but the single fact that the plaintiff did washing for third persons, and that those earnings went towards the family’s support. A different question might be presented were the husband permanently disabled and unable to contribute anything to the living expenses. The proof here, however, only shows that the husband was temporarily incapacitated, and had been in the hospital for a week, but there is otherwise nothing to overcome “the strength of the presumption of the husband’s continued liability to support Ms wife, and of his performance of that duty, and of his consequent common-law right to her earnings.” Brown v. Railroad Co., supra; Thuringer v. Railroad Co., 71 Hun, 526, 24 N. Y. Supp. 1087. With the husband entitled presumptively to all the earnings of his wife, the mere fact of her working out at the expense, perhaps, of the performance of her household and domestic services, to which he is concededly entitled in any event, there must be something averred— proved—to show that she labored on her own account. In the absence of a proper foundation, it was error to admit the testimony, and the judgment should therefore be reversed.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.  