
    Pauline Klapper, Respondent, v. The Metropolitan Street Railway Co., Appellant.
    (Supreme Court, Appellate Term,
    April, 1901.)
    Husband and wife — His right to her earnings — Damages for accident to wife.
    Where a married woman, living with her husband, sues to recover damages for personal injuries caused her by alleged negligence, her earnings, from washing done for third parties, and contributed by her to the support of the family, cannot be proved as an element of damages, the rule being that her services and earnings belong to her husband unless they were rendered or received by her expressly upon her sole and separate account.
    
      Proof that her husband was temporarily incapacitated, and had been in a hospital for a week does not overcome the presumption that he was able to and did support her and consequently had a right to her earnings.
    Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, fourth district, borough of Manhattan.
    GL Grlenn Worden, for appellant.
    Simon Lorincz, for respondent.
   Leventritt, J.

The plaintiff, a married woman, living with her husband, recovered a judgment below for damages resulting from defendant’s negligence. The sole question presented on this appeal is whether the admission of the following testimony on behalf of the plaintiff constituted reversible error: “ Q.

What were the average amounts of your earnings per week? A. Sometimes a dollar, sometimes a dollar and a half, sometimes one twenty-five and two dollars a day, eight to ten dollars a week.”

The defendant duly excepted to this testimony after proper objection taken, and, having developed on cross-examination that the plaintiff was a married woman, living with her husband, moved to strike it out. This motion was denied.

On the proof in this case the testimony was inadmissible.

At common law the husband was absolutely entitled to the services and earnings of his wife, and neither the enabling act of 1860 nor the broader one of 1884 has affected this right unless the services and earnings were rendered or received expressly upon her sole and separate account. Holcomb v. Harris, 166 N. Y. 259, 261; Matter of Callister, 88 Hun, 87.

In Uransky v. Dry Dock, E. B. & B. R. R. Co., 118 N. Y. 304, it was said: “Presumptively, damages for negligently diminishing the earning capacity of a married woman belong to her husband, and when she seeks to recover such damages, the complaint must contain an allegation that for some reason she is entitled to the fruits of her own labor.” In the absence of such an allegation the judgment there was reversed for error in admitting m evidence the earning capacity of the plaintiff as a dressmaker. In this case the pleadings were oral; in her written bill of particulars the plaintiff states that.she had lost in wages “thus far $36.00.” Conceding the existence of a more liberal rule in the case of oral pleadings the plaintiff would still have to show by the proof some reason why she is entitled to the fruits of her own labor. What an adequate reason is has been the subject of' judi-> cial construction; While it has been held in one case (Brooks v. Schwerin, 54 N. Y. 343) and implied by dictum in another (Blaechinska v. Howard Mission & Home, 130 N. Y. 497, 503) that where the wife worked for a stranger that in itself was sufficient to make her earnings for the benefit of her sole and separate account, the better considered view seems to be that the bare fact that she performs services for third persons does not necessarily bring' it within the statute. “ The true construction of the statute is that she may elect to labor on her own account, and thereby entitle herself to her earnings, but in the absence of such an election or of circumstances showing that she intended to avail herself of the privilege and protection conferred by the statute, the husband’s common-law right to her earnings remains unaffected.” Birkbeck v. Ackroyd, 74 N. Y. 356, 358. This case arose under the statute of 1860, but on the point involved the same reasoning applies to the present law. Brown v. Third Avenue R. R. Co., 19 Misc. Rep. 508, decided by this court in 1897, is much in poinfi "TKaEHwas a case in which the plaintiff sued to recover damages for the loss of his wife’s services. She testified without objection that before the accident she worked as a laundress, earning one dollar and fifty cents a day. The trial justice refused to charge that the husband had no absolute legal right or claim to the earnings of the wife. Following the Uranslcy case, supra, it was held' that the earnings of the wife, whether at home or abroad, unless acquired in the pursuit of a separate business, or in connection with her separate estate, presumptively belonged to the husband. It did not there appear that the wife’s earnings were saved or kept apart by her as a separate estate; she and her husband lived together “ and the presumption is that her earnings were turned in as part of the family resources.” Page 510. In the case at bar the record discloses nothing but the single fact' that the plaintiff did washing for third persons and that those earnings went towards the family’s support. A different question might be presented were the husband permanently disabled and unable to contribute anything to the living expenses. The proof here, however, only shows that the husband was temporarily incapacitated and had been in the hospital for a week, but there is otherwise nothing to overcome “ the strength of the presumption of the husband’s continued liability to support his wife and of his performance of that duty and of his consequent common-law right to her earnings.” Brown v. Third Ave. R. R. Co., sufra; Thuringer v. N. Y. C. & H. R. R. R. Co., 71 Hun, 526. With the husband entitled presumptively to all the earnings of his wife, the mere fact of her working out at the expense, perhaps, of the performance of her household and domestic services to which he is concededly entitled in any event, there must be something averred — proved to show that she labored on her own account. In the absence of a proper foundation, it was error to admit the testimony, and the judgment should, therefore, be reversed.

Bischoee, P. J., and Clarke, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  