
    Catharine Stevens, Appellant, v. Patrick Cunningham, as Administrator with the Will Annexed of Bridget Walsh, Deceased, Respondent.
    
      Mct/i’ried woman — presumption that her services to a third person were rendered for her husband.
    
    Prior to the passage of chapter 289 of the Laws of 1902 a presumption existed that services rendered by a married woman were rendered for her husband, which presumption could, however, be rebutted by evidence.
    What evidence given upon the trial, prior to the passage of the act of 1902, of an action by a married woman to recover the value of services rendered to the defendant’s intestate by plaintiff, while living with her family, in the same house with the intestate, is insufficient to rebut the presumption that the plaintiff was laboring in her husband’s behalf, considered.
    Appeal by the plaintiff, Catharine Stevens, from ■ a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 13th day of November, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Saratoga Trial Term.-
    
      Edgar T. Brackett, for the appellant.
    
      William P. Woladi and John Foley, for the respondent.
   Smith, J.

This action was- brought to recover for the value of services rendered by the.plain tiff to the defendant’s intestate. At the time of the rendition of the services the plaintiff was a married woman living with her husband. The complaint was by the trial judge dismissed upon the ground that the claim belonged to the husband. This raises the only question here for review. By section 2 of chapter 90 of the Laws of 1860 a married woman was given the right to “ perform any labor or services on her sole and separate account, and the earnings .of any married woman, from her trade, business,, labor or services, shall be her sole and separate property, and may be used or invested by her in her own name.” This statute has been construed by the Court of Appeals in Birkbeck v. Ackroyd (74 N. Y. 358), in which the court .says: The section confers upon her the capacity of % femme sole, in respect to any business in which she may engage, and empowers her to labor on her own account. But it does not wholly abrogate the rule of the common law. She may still regard her interests and those of her husband as identical, and allow him to claim and appropriate the fruits of her labor. The bare fact that she performs labor for third persons, for which. compensation is due, does not necessarily establish that she performed it under the act of 1860, upon her separate accounh The true construction of the 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.” In Stokes v. Pease (79 Hun, 304) the court held that there was a common-law presumption that the services of the wife belonged to the husband notwithstanding the statutes of 1860 (Chap. 90) and 1884 (Chap. 381), but that the presumption might be rebutted, and it was held to have been rebutted under the circumstances of that case. By chapter 289 of the Laws of 1902, passed after this action was tried, that presumption of law has been changed by the Legislature and a married woman is now authorized to bring an action for her services rendered, with the presumption that she alone is entitled thereto. The enactment of .this law is a legislative recognition of the- rule of law as theretofore existing as laid down in the cases cited.

The remaining question then is one of fact. Is there any evidence to rebut the presumption that these services were rendered for the husband ? During most of this time the plaintiff and her family lived in the same house in which the deceased lived in upper rooms. There is no explicit contract shown to pay the plaintiff for her services. The only obligation claimed is under a contract implied from the rendition of the services at the deceased’s request. Services were rendered not only by this plaintiff, but also by her two daughters, for which services the husband would confessedly be entitled to compensation. In response to a question whether anything was said between her husband and herself before the death of the intestate, the plaintiff swore, No, sir, because we always thought Mrs. Walsh would leave us something, she always promised to.” This evidence gives no indication of an election by the plaintiff to act independently of her husband, but rather indicates that she was acting with him upon the understanding that some remembrance by will was to be made by the intestate to herself and to her husband. We find no evidence, therefore, to rebut the presumption that she was laboring in her husband’s behalf. Her husband then had a right of action for such services, and to allow the plaintiff to recover therefor would subject the defendant to a double liability. We think, therefore, that the trial court properly dismissed plain tiff’s complaint.

Judgment unanimously affirmed, with costs.  