
    James Talcott, Resp't, v. Peter Thomas et al., App'lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    
    1. Assignment for creditors—Husband and wife.
    The mere fact that a wife is carrying on a separate business does not change her relation to her husband nor deprive him of his right to her services in a domestic capacity. Where she keeps a restaurant, the husband cannot incur an indebtedness to her for board furnished him at such place which can be enforced against him or preferred to the claims of his creditors.
    3. Same—Bar.
    An accounting by and discharge of the assignee after the commencement of an action to set aside the assignment are not a bar to a further accounting by the assignee in case the assignment is set aside.
    Appeal from an interlocutory judgment entered in Genesee <county July 6, 1888, on the findings and decision of the court at special term, and from a final judgment entered January 23,1892, -on the report of a referee appointed by the interlocutory judgment, to take an accounting.
    A. A. Washburn, for app’lts;
    
      K A. Olarh, for resp’t.
   Dwight, P. J.

The action was in the nature of a creditor’s bill to set aside a voluntary assignment made by the defendant, Peter, to the defendant, John Thomas, as being in fraud of creditors ; and to obtain payment of the plaintiff’s judgment out of the assets of the assignor which had come into the hands of the assignee. All the facts necessary to entitle the plaintiff to maintain such an action were established by the pleadings; and the facts upon which the trial court based its conclusions adverse to the validity of the assignment were established by uncontradicted ■evidence. Those facts were, in brief, that by the assignment preference was given to an alleged indebtedness of the assignor to his wife, “ for his board in the house where he and his said wife and family resided together, including the services of his wife therein.” The subject of this preference yms characterized, in the findings of fact as a pretended indebtedness, and by the conclusions of law it was declared to constitute no obligation on the part of the assignor as against his creditors, and as to them the assignment was declared fraudulent and void by reason of such preference.

The circumstances of the alleged indebtedness as testified to by the wife were as follows : The wife of the assignor was possessed, at the time of her marriage in 1865, of a small sum of money, $400 or $500. What be'came of the money in the meantime does not at all appear, but in 1881 she went into the business of keeping “a restaurant” in the same house in which she lived with her husband and five children, all under the age of twenty-one years. The restaurant business consisted of the sale of liquors at a bar, and an occasional meal served in the family dining room. The wife took the lease' of the house and the license to sell liquor in her own name. She employed no servant, but did all the work of the house herself, with the aid of the minor children of herself and the assignor. The oldest son tended the bar most of the time, and when he was away the wife, and sometimes the assignor, waited on customers.

We think there is nothing in these circumstances to take the case out of the rule so well, established in this state that, notwithstanding the married woman’s acts, the wife still owes to the husband the services rendered in a domestic capacity to him and his children, and that for such services a valid indebtedness cannot be incurred. Coleman v. Burr, 93 N. Y., 17, 25; Blaechinska v. Howard Mission, 130 id., 497; 42 St. Rep., 387; Brooks v. Schwerin, 54 N. Y., 343.

The fact that the wife was carrying on a separate business at the same time does not change the relation in which she- stood, nor the obligations which she owed to her husband. The board which he received in his house was in large part the product of the labor of his wife and his minor children, to which he was entitled without charge, and for which he could incur no indebtedness which could either be enforced against him or preferred to the just claims of his creditors.

We can have no doubt of the correctness of the findings and conclusions of the trial court in the respect mentioned, nor of the judgment based thereupon.

The remaining appeal in this case is from the final judgment entered on the report of the referee appointed by the interlocutory judgment to take an accounting of the assigned estate which had come into the hands of the assignee. The basis of this appeal is the contention on behalf of the defendants that an accounting had in a proceeding under the general assignment act instituted in the county court since the commencement of this action was a bar to any further accounting by the assignee, and that the discharge of the assignee in that proceeding was conclusive upon the plaintiff herein.

We regard this contention as wholly untenable. The action and the proceeding are wholly opposed to each other in purpose and in theory. The one is in furtherance of, the other in hostility tó, the'assignment. The one assumes its validity, the other asserts that it is void and of no effect. If the action prevails there is no assignment, and the proceeding goes for naught. By the commencement of the action the plaintiff acquired an equitable lien, to the extent of his judgment, upon the assets of the assigned estate, which, upon the recovery of judgment for the relief sought, became enforcible against such assets as of the date of the commencement of the action. Edmeston v. Lyde, 1 Paige, 637; Eager v. Price, 2 id., 333; Knower v. Central Nat. Bank, 124 N. Y., 559; 37 St. Rep., 89. Of course such a lien cannot be divested by any proceeding instituted by the assignee subsequent to the commencement of the action.

The principles thus briefly stated are fully and well elaborated in the opinion of the learned referee by whom the accounting herein was taken. We have no doubt of the correctness of his conclusion that the assignment having been adjudged void as to the plaintiff, he was entitled to an accounting of the assets of the estate as they were at the time of the commencement of his action, notwithstanding the accounting already taken under the assignment in a proceeding subsequently commenced.

We find, however, no valid objection to the result reached by the accounting so taken, but are of opinion that the assignee was properly charged with the items reported against him.

Both the interlocutory and final judgments should be affirmed.

Judgments appealed from affirmed, with costs payable out of the assigned esstate.

Macomber and Lewis, J.J., concur.  