
    SCHMITT against COSTA.
    
      New York Common Pleas ; General Term,
    
    
      June, 1867.
    Liabilities of Married Women.
    An action is not maintainable, under the statutes of this State, against a married woman, to recover for articles sold to her, where she is not engaged in carrying on any trade or business, and has no separate estate.
    Appeal from a judgment of a district court.
    This action was brought in the district court of the city of New York for the sixth district, by Charles C. Schmitt against Charlotte Costa, for $56 claimed-as balance due upon the sale of a sofa, by the plaintiff to the defendant. The defence was that defendant was a married woman ; and that the statutes relative to married women did not authorize a personal action against her, inasmuch as she carried on no business, and ■owned no separate estate. Upon this ground the justice rendered judgment for defendant, from which the plaintiff now appealed.
    
      Thomas Brennan, for the appellant.
    
      Philip F. Smith, for the respondent.
   By the Court.—Cardozo, J.

The plaintiff seeks to make the defendant, who is a married woman, not carrying on any trade or business, and not having any separate estate of her own, liable for some household furniture,which he sold and delivered to her. So far as this claim rests upon the statutes of this States respecting married women, I think it cannot be supported. It was not pretended on the argument but that down to the passage of the act of 1862 (Session Laws, 1862, 343), the authorities were against the defendant’s liability. (Barton v. Beer, 21 How. Pr., 309; Brown v. Herman, 14 Abb. Pr., 394); But it was supposed that the word “ purchase ” which was then for the first time introduced into the statute (§§ 7 and 3) effected a change.

I think that is not so. The property which is to be her separate estate, the transactions in which she may engage for her sole benefit, and the manner in and the circumstances under which she can acquire additional property, are regulated by other sections of the statutes which have not undergone any change since the decisions above referred to.

The 7th section confers no additional right either to contract or to acquire (except as the results of a suit) any property, but simply authorizes her to sue and be sued, and must be read in connection with the previous sections which regulate of what her estate shall consist and how she may acquire it, and under what circumstances she may contract respecting it.

This disposes of the only question in the case. The trial seems to have been conducted and decided below upon the theory that the liability of the defendant must depend entirely upon the statute. The proof, although I imagine from the evidence given, that the defects could have been supplied was not sufficient to fully present the point, and therefore it is unnecessary to decide whether a case might not have been made in which the defendant could have been held liable at common law. (See a review of many oft he authorities in Gregory v. Paul, 15 Mass., 31.)

The judgment must be affirmed with costs.  