
    Augustus E. Carver, as Executor, etc., of Mary D. Tower, Deceased, Respondent, v. Harriet A. Wagner, Appellant, Impleaded with John J. Wagner.
    
      Contract for.the services of a married woman made with her husbands consent — she may offset her claim thereunder against a mortgage — the husband testifying in her favor is estopped.
    
    Where a married woman, having no separate business except occasionally the making of vests, takes her sister into the household under an agreement, made with the knowledge and consent of the husband, who, in the main, provides for the family, that the sister shall compensate her for her services, and payments under such agreement are made to .the wife with the husband’s knowledge, the wife may, in an action brought by the executor of the sister to foreclose a mortgage given to the sister by the wife, interpose a counterclaim for the balance due under such agreement.
    Where the husband, who was a party defendant to the action, testifies in support of his wife’s claim, he is, in the event of the claim being upheld, estopped from subsequently asserting that the demand belongs to him.
    
      Appeal by the defendant, Harriet A. Wagner, from'a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 21st day of December, 1899, upon the decision of the court, rendered after a trial .at- the Monroe Special Term, decreeing a foreclosure of the mortgage in suit, and also from an order bearing date the 18th day of December, 1899, and entered in said clerk’s office, denying the (defendant’s motion for an inspection and discovery of the papers and accounts . of plaintiff’s testatrix.
    This, action was brought to foreclose a mortgage given by the defendant Harriot A. Wagner to the plaintiff’s testatrix,. Mary D. Tower, bearing date June 10, 1896, to secure the payment of $1,000 and interest thereon according to the conditions of a bond to which said mortgage Vas collateral, and asks for a personal judgment against said obligor. The mortgagee, Mrs. Tower, (lied, a resident of Massachusetts, on the 22d day of March, 1899, leaving a last will and testament executed in 1877 and which was duly admitted .to probate in that State.and ancillary letters testamentary' were issued to the plaintiff by the surrogate of the county of Monroe.
    
      O. H. Stevens, for the appellant.
    
      John B. Kiley, for the respondent.
   Spring, J.:

•The bond and mortgage in this case bear date June 10,1896. 'They are each acknowledged Hovember twenty-seventh of that year. By their terms the principal sum of $1,000' is due three years from ■date, with annual interest. The action was commenced October 26, 1899, and, therefore, by the strict letter of the contract the whole sum secured by the mortgage was due prior to the commencement •of the action. The complaint alleges that the bond and mortgage were delivered Hovember- 27, 1896, and treats the obligation as * commencing to run from that date, and hence no part of the principal sum. was due when the action was commenced. The findings -of fact in the decision of the trial court follow the complaint, but they contain a finding that the whole sum secured is-due because of -default in the payment of interest, although the complaint contained . .no allegation to that effect, or of an election to consider the whole sum due, and the bond contains no provision permitting that election to be made. . We advert to these inconsistencies in the record to enable the court on another trial to straighten them out.

The answer, after a few unimportant denials, contains a counterclaim alleging that the said testatrix, Mary D. Tower, and the mortgagor were sisters ; that Mrs. Tower lived with the défendants from 1876 until 1895 ; that she came into the family of the defendants pursuant to an agreement whereby she was to pay one dollar per week to said Harriet A. Wagner for caring for and providing a home for her. “ until such time- as her financial condition should enable her to pay more; that should that time come the compensation should be more ; ” that thereafter said testatrix received from the United States government a pension of twelve dollars per month and arrearages amounting to twelve hundred dollars ; that she paid her sister from time to time in pursuance of the agreement, but not in full, and so stated, adding that adequate compensation would be made to the defendant by her will; that in her will no provision was made for the claim of the said defendant; that the services rendered by the latter in the fulfillment of the agreement referred to were worth four dollars per week. The defendant asks for an accounting, the ascertainment of the balance due her and for judgment for “ about '$1,500.” 7

The counterclaim contained an affirmative, independent cause of action existing in favor of the defendant at the time of the commencement of the action, and was, therefore, a proper counterclaim within the Code definition. (Code Civ. Proc. § 501; Seligman v. Dudley, 14 Hun, 186 ; Merritt v. Gouley, 58 id. 372.) No reply was served to this counterclaim, and the facts constituting it, therefore, stand admitted, and hence only a computation was necessary to determine the extent of the defendant’s demand.

On the trial, however, the facts out of which the defendant’s cause of action arose were gone into, and it appeared that Harriet A. Wagner was the wife of John J. Wagner, the other defendant, during the whole period she was providing for her sister; that these defendants composed the family; that the dwelling belonged" to the wife; that the sisters were the only parties to the agreement, and all payments made by Mrs. Tower for the home and care furnished to her were to the wife; that the husband knew and assented to the agreement and to the payments in compliance with it; that he in the main provided for the family, and the wife had no separate business except occasionally the making of vests; that apparently no claim was made by the husband for the pay accruing for these services.

The court below held that the claim, if any, inured to the husband, and, consequently, was not a proper subject of counterclaim by his wife, the mortgagor. We cannot assent to this doctrine. Section 2 of chapter 9(f of the Laws of 1860 authorizes a married woman to carry on a separate business and to own her earnings as her sole property. Section 21 of chapter 272 of the Laws of 1896 (the Domestic Relations Law), in amplification of this authority,, provides: A married woman has all the rights in respect to property, real or personal, and the acquisition, use, enjoyment and disposition thereof, and to make contracts-in respect thereto with any person, including her husband, and to carry on any business, trade or occupation, and to exercise all. powers and enjoy all rights in. respect thereto and in respect to her contracts, and be liable on such-contracts, as if she were unmarried ; but a husband and wife can not contract to alter or dissolve the marriage or to relieve the .husband from his liability to support his wife.” It is very obvious that these enactments do not destroy the common-law unity of the marital -relation. The husband is still entitled to the services of his wife.. (Porter v. Dunn, 131 N. Y. 314 ; Blaechinska v. Howard Mission & Home. 130 id. 497; Coleman v. Burr, 93 id. 17; Matter of Callister, 153 id. 294.) But these cases recognize a plain exception to the rule, and that is if the wife renders services for another with the assent of the husband and with his acquiescence in payment made to her therefor the compensation belongs. to her absolutely. The husband can forego his right to his wife’s earnings, and, unless done in fraud of creditors, the property she acquires with his knowledge and assent, whether within the household or oútside, vests in her. (Stokes v. Pease, 79 Hun, 304; Sands v. Sparling, 82 id. 401; Lashaw v. Croissant, 88 id. 206; Birkbeck v. Ackroyd, 74 N. Y. 356.) In Stokes v. Pease (supra) the plaintiff was a married woman living with her husband and cared for her invalid sister, under an agreement between them that the sick sister would devise to the plaintiff her property. The plaintiff sought to enforce her claim upon the death of the sister, who had failed to make the expected devise, but it was disallowed on the ground that her services belonged to her husband. The judgment was reversed, and the court, after quoting the statutes extending the rights of married women, says: Under these statutes if a married woman, with the knowledge of her husband, renders services to a third person, pursuant to a contract for compensation, she may maintain an action to recover-the price agreed or the value of the services rendered.”

This does not violate the rule that the husband is entitled to his wife’s services, and that no claim can be established against him. And many of the cases discussing the question arose where an attempt was made to enforce the demand against him or his personal representatives upon an alleged agreement with him. That is a very different-question from one where the services are rendered to a stranger, with the assent of the husband and upon a contract made with his knowledge and approbation that the compensation is to be paid to his wife, and ratified by the actual payment for a part of the services performed. The distinction is clear and is well recognized by the authorities. In the one case the wife is seeking to maintain her claim in antagonism to the husband and in disregard of her wifely duties. In the other case the husband, the party affected, renounces his paramount right to the money she has earned. In the present case the husband was a party defendant and a witness in vindication of the agreemént his wife had entered'into. His testimony estops him.from hereafter asserting that the demand belongs to him in case the claim of the wife is upheld. (Stamp v. Franklin, 141 N. Y. 607, 611.)

The judgment should be reversed, with costs, payable out of the estate, 'and the order should be affirmed, .with ten dollars costs, without prejudice to the plaintiff to apply for leave to serve a reply.

All concurred.

Judgment reverséd and a new trial -ordered, with costs to the appellant to abide the event, and order affirmed, with ten dollars costs, without prejudice to plaintiff’s right to move for leave tO’ serve a reply.  