
    Stevens, appellant, v. Bostwick.
    
      Coverture — when it must he pleaded.
    
    In an action by a married woman for goods sold¡ etc., held, that the defense that plaintiff was married and had no separate estate or business was not available when not set up in the answer.
    Appeal from a judgment in favor of defendant entered upon the report of a referee. The action was brought in Genesee county by Harriet C. Stevens against Homer Bostwick, administrator of the estate of Edward Stevens, deceased, for goods sold, money lent and board furnished intestate. The plaintiff was a married woman, but in the complaint was no averment of that fact, or that she carried on business in her own name or had separate property, the action being brought as if plaintiff was a feme sole. The answer was a general denial and payment and a counter-claim.
    The referee before whom the action was tried found, as a matter of fact, that during the time of the contracting of the indebtedness of - intestate plaintiff was a married woman "having no separate estate, and transacting or carrying on no business on her separate account, and as a conclusion of law that plaintiff was not entitled to recover. >
    
      A. Stevens, for appellant.
    
      Peck & Boioen, for respondent.
   E. Darwin Smith, J.

The referee clearly erred in dismissing the complaint in this action. The complaint set out a cause of action upon its face in favor of the plaintiff and against the defendant. The answer denied the complaint and set up a counter-claim.

If the defendant intended to make the defense that the plaintiff was a married woman and had no separate estate, or carried on no separate trade or business, he should have set up such a defense by answer. Freeking v. Holland, 53 N. Y. 422.

Coverture must be pleaded to be available if intended to be set up as a defense. 1 Ghitty on Plead. 449; Dillaye v. Parks, 31 Barb. 132. In Hallock v. DeMunn, 2 N. Y. Sup. 350, where it was held that -to maintain an action against a married woman it must be shown that the debt was contracted for the purpose of carrying on a separate trade or business and for the benefit of her separate estate, and the answer in proper form set up the defense in a denial of these facts, no question as to the form of the pleadings was -presented for consideration.

The judgment should be reversed and a n"ew trial granted, with costs to abide the event.

Judgment, reversed and new trial granted.  