
    SUPREME COURT.
    Robert H. Berdell, plaintiff and appellant, agt. Harriet B. Berdell and Eliza W. Parkhurst, defendants and respondents.
    
      Husband, and wife—Action maintainable by husband against his wife for conversion of his property.
    
    A husband may maintain an action against his wife for taking and converting his property.
    
      Second Department, General Term, November, 1879.
    The facts sufficiently appear in the opinion.
    
      W. J. Groo, for appellant.
    
      S. W. Fullerton, for respondents.
   Barnard, P. J.

The plaintiff, at the time of taking the property in question, was the husband of the defendant Harriet B. Berdell. She left her husband’s house and took with her therefrom certain personal property of very considerable value. The plaintiff brought this action to recover its value against six persons. The action failed as to four, by consent of the plaintiff, upon the trial. The court dismissed the complaint as to the defendant Parkhurst, because there was no proof making out a cause of action against her; and as to the defendant Berdell, because the action would not lie against the wife for the wrongful taking. As to Mrs. Parkhurst, I think the ruling was right. She made no claim, to the property; she did not direct the taking, or assist in its removal, directly or indirectly. The entire proof against her was that she was an inmate of the family up to the time of the removal, and continued with the wife afterwards. She-asserted a claim against the plaintiff upon her own account, the particulars of which do not appear. She went with Mrs.. Berdell upon one occasion to consult with her attorneys about her claim, at the same time that Mrs. Berdell consulted the same attorneys about the property in question. On that occasion Mrs. Parkhurst testifies that she presumes she said that she should take what belonged to her, speaking in reference to Mrs. Berdell’s claim; that she favored the taking, so far as to express an opinion that she thought Mrs. Berdell was entitled to it. This seems to fall short of evidence upon which a jury could find Mrs. Parkhurst to be a joint actor in the taking. The opinion expressed was not uttered in proximity to the property, nor at the time of the taking, and, of themselves, show no assertion of the slightest dominion over the property (Gilbert agt. Roberts, 57 N. Y., 28). As to the other question presented by this appeal the law is in a very unsatisfactory state. The .plaintiff is entitled to own property and so is his wife. He can bring action for a conversion against any one. who violates his right to have and possess his own property, unless his wife be a person excepted by the relation of husband and wife. She has the same right against all trespassers, unless her husband be the sole exception. It has been decided that a wife may not sue her husband for slander, nor for assault and battery, nor for wages (Fruthy agt. Fruthy, 42 Barb., 642; Longendyke agt. Longendyke, 44 Barb., 336 ; Parker agt. Parker, 62 Barb., 530 ; Shuttleworth agt. Winter, 55 N. Y. 625).

The court of appeals held that a wife did not become liable to answer her husband’s administrators for the proceeds of property disposed of by the wife without right, in the lifetime of her husband, when the property was intrusted to the wife by the husband for management and control. On the other hand it has been held that a wife could sue her husband for a conversion of her property. Some question is made whether an action at law could be brought, but that a complaint which stated a conversion stated a cause of action, and that the proper relief should be given even though it was not asked for in the complaint (Whitney agt. Whitney, 3 Abb. [N. S], 350).

This court has, in a.late case, decided that a wife may sue her husband in ejectment to recover the possession of her property which was wrongfully detained from her by her husband.

We uphold the action upon the ground that whoever owned property and was entitled to its possession could recover it at law against any wrong-doer, including her husband. The same principle should govern this case. The evidence showed more than a mismanagement of property intrusted to the wife by the husband. It showed a tortious taking; a forceable seizure and carrying away under a claim that she owned it and that the husband did not. If he cannot challenge her act in a court of law and recover his property, if it shall be adjudged to be his property, he has not perfect protection in the enjoyment of his property under the law.

We deem his right of action to be clear against his wife, if she has wrongfully taken his property under a claim that it is her separate estate.

' The judgment as to Mrs. Parkhurst should be affirmed, with costs, and reversed as to Mrs. Berdell, with costs to abide the event.  