
    Owen & Bellows vs. Jane F. Cawley and Samuel B. Cawley.
    The power of a married woman to charge her separate estate should not be extended beyond the rule laid down by the court of appeals in Tale v. Dederer, (22 N. Y. Rep. 450,) viz. that in order to create a charge, the intention to do so must be declared in the contract itself, or the consideration must be one going to the direct benefit of the estate. Per Ingraham, J.
    A married woman, who had a separate estate, transacted business on her own account, her husband acting as her agent, in conducting the same. The husband employed attorneys to commence suits upon accounts growing out of the wife’s business. In an action by the attorneys, against husband and wife, to charge her separate estate with the costs incurred in those suits, there not being enough in the case to show that the husband was in fact, and with the wife’s knowledge, acting as her agent in employing the attorneys, and certainly not enough to show that she intended to charge her separate estate, a report of the referee, in favor of the plaintiffs, was set aside, and the case referred back to the referee; the court not being satisfied that all the services rendered were a proper charge on the wife’s separate estate. Clerke, P. J. dissented.
    Whether a husband, even though his agency in collecting debts due the wife be admitted, has any right to bind the separate estate of his wife, without her knowledge and express assent 1 Qucere. Per Ingraham, J.
    It seems that whether a suit brought in the name of a married woman is or is not for the benefit of her separate estate, must be determined by the intent and object of commencing it, rather than by the result, Per Goran, J. and Clerks, P. J.
    APPEAL from a judgment entered upon the report of a referee. The defendant, Mrs. Cawley, who was a married woman, was the owner of certain real estate, and was engaged in the business of ship chandlery, in the city of blew York, which was conducted by her husband as her agent. The property was held by her as her separate estate. Samuel B. Cawley, the husband, as his wife’s agent, employed the plaintiffs, who were attorneys, to commence suits upon accounts growing out of the wife’s business. Costs being incurred in those suits, the present action was brought by the plaintiffs against husband and wife, to charge her separate estate with the amount of those costs. The action was referred to a referee, who found as facts that the claim was just, and that the services of the plaintiffs were rendered for the benefit of the wife’s separate estate; and as matter of law, he found that the plaintiffs were entitled to judgment therefor against such separate estate. From the judgment entered upon the report, Mrs. Cawley appealed.
    
      D. McMahon, for the appellant.
    
      Mr. Owen, for the respondents.
   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 v. Dederer, (22 N. Y. Rep. 450,) holds 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. 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. 2sTo 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, could 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 collecting the accounts 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 her 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 tins 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.

(dissenting.) Although a married woman could not have carried on business as a feme sole, previous to 1860, yet the acts of 1848 and 1849 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 1st, whether she possessed separate property, of any kind; and 2d, 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 admissions of the defendants’ answer.

[New York General Term,

September 16, 1861.

Gierke, Ingraham and Gould, Justices]

II. In Yale v. Dederer, (22 N. Y. Rep. 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, are 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 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 to her, the commencement or 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 should depend 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 skillful 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.

Hew trial granted.  