
    Sumner A. Mason, App’lt, v. Emma J. Mason, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    Husband and wife—Taking of husband’s property by wife.
    Where a wife abandons her husband and takes with her his property, he may maintain an action against her therefor.
    (Dykman, J., dissents.)
    Motion for a new trial on exceptions ordered to be heard at this general term in the first instance.
    After the plaintiff’s case had been opened defendant’s counsel moved to dismiss the complaint upon the facts admitted by plaintiff.
    The facts stated by plaintiff’s counsel on which the motion was made were:
    
      1. That plaintiff and defendant had, long prior to the time referred to in the pleadings, been lawfully married, and that there had been no decree of separation or divorce since that time.
    2. That prior to the 1st day of May, 1888, the defendant had abandoned the plaintiff and had continued that abandonment ever since.
    3. That on or about the 1st day of May, 1888, the defendant unlawfully took possession of certain goods belonging to plaintiff and unlawfully converted them to her own use, and that such goods were worth $2,000.
    By permission of the court, in order to raise fully the question of law presented, plaintiff made offer of proof of abandonment of plaintiff by the defendant. This proof was excluded as immaterial, and plaintiff excepted.
    On these facts defendant’s counsel moved to dismiss the complaint on the ground that a husband could not sue his wife for conversion even though she had abandoned him before the conversion.
    The court granted the motion of defendant. Exceptions were taken by plaintiff to the exclusion of his evidence and to the direction of the court.
    
      W. C. Beecher, for app’lt; Alexander Cameron, for resp’t.
   Barnard, P. J.

The plaintiff is the husband of the defendant. The complaint charges that the defendant took valuable property from his possession and converted and disposed of the same to her own use. The case must be considered as if it was the fact that the defendant abandoned the plaintiff. The plaintiff offered proof tending to show it, and it was rejected. It was decided by this court that if a wife took with her the husband’s property, he could bring an action against his wife. .Berdell v. Parkhurst, 19 Hun, 358.

The court of appeals has repeatedly decided that a husband is liable for his wife’s torts, and this action was dismissed upon the authority of Mangam v. Peck, 111 N. Y., 401: 19 St. Rep., 78; Fitzgerald v. Quann, 109 N. Y., 441; 16 St. Rep., 395.

The cases do not conflict necessarily with Berdell v, Parkhurst. The reasoning by which such a result is reached is to the effect that a husband has no remedy because he is liable as to a stranger to an action for a conversion by his wife of the stranger’s goods. The wife would be liable with her husband to the stranger for her conversion by virtue of the old rule of the common law not necessarily repealed before chaps. 51 and 248, Raws of 1890.

The wife could hold a separate estate at the time of the wrongful act. If she could increase it by taking wrongfully her husband’s property and go away with it, and he have neither action or relief against her for the recovery back of the same, it would be a case of great hardship. The court of appeals in Wood v. Wood, 83 N. Y., 575, held that a wife could bring an action of ejectment against her husband to recover her pi'operty unlawfully taken from her. The remedy should be even between them.

The exceptions should, therefore, be sustained and a new trial granted, costs to abide event.

Pratt, J., concurs; Dykman, J., dissents.  