
    Barbara Burger, by her next friend, plaintiff and respondent, v. Thomas White, et al., defendants and appellants.
    It is within the discretion of the Court, after the evidence is stated to he closed, to open the case, and permit further evidence to be given.
    When a party, moving for a new trial, is not entitled to it, as a matter of right, he can not, on an appeal by him from an order granting it on terms, procure its reversal by reason of such terms. They are matters resting purely in discretion, and are not reviewable on appeal.
    Where a husband does nothing for the support of his wife, and she, having a separate property, employs herself in trading therewith, with his knowledge and assent, he neither assisting nor interfering therewith, such property does not become, in equity, liable for his debts. It remains, with its proceeds and profits, her sole and separate property. Freeman v. Oner, (6 Duer, 476,) commented on, and distinguished from this case.
    (Before Bosworth and Woodruff, J. J.)
    Heard, June 17th; decided,
    November 7th, 1857.
    This action comes before the Court, at General Term, on an appeal by the defendants from an order granting a new trial, in respect to the question of damages, on terms, and also from the judgment entered on a verdict in favor of the plaintiff.
    It was tried in June, 1855, before Mr. Justice Bosworth and a jury. The plaintiff is a married woman.
    The action was brought by her, January 3d, 1855, against the defendants, for taking and carrying away, on the 30th of December, 1854, and converting to their own use certain meats and other provisions, being the stock in trade of a butcher’s stall, which she claims as her separate property.
    The defendants justify the taking, under an execution against Michael Burger, (husband of the plaintiff,) and deny that the goods, etc., taken, were in the possession of the plaintiff, or were her property.
    The evidence given on the part of the plaintiff, on the trial, tended to show, that in 1850 or in 1851, or in both years, the plaintiff, by inheritance, and as next of kin, became entitled to a share in the estate of her father, and that, about that time, it was collected by her brother-in-law, Charles Burger, under a powerof attorney, and brought to this country, to the amount of several thousand dollars.
    That, for several years past, her husband has passed his time about porter-houses, leading an idle life—doing nothing for the support of his wife.
    That in October, 1854, prior to the taking complained of, the plaintiff purchased, with a portion of the money received from the estate of her father, a butcher’s shop in the First Avenue, in this city, and stocked it with meats, employing her brother-in-law, Charles Burger, to make the purchases, kill the cattle and collect bills.
    That she devoted her own time and labor, daily, to the business, superintending the shop, etc., employed another assistant and paid him, and carried on a “large business.” There was evidence that her husband knew of this, and he was sufficiently shown to have assented to it.
    The goods taken were the meats, etc., in the shop so occupied by her. Whether the business was profitable or not does not distinctly appear, and it is impossible, from the evidence, to say whether any portion of the property taken was obtained by investing profits previously accrued. Some of the evidence would indicate, that the principal moneys invested were greater in amount than the value of the property found as damages by the jury.
    On the other hand, there was evidence tending to impair the credibility of Charles Burger, the plaintiff’s principal witness, and some evidence that the plaintiff’s husband sometimes assisted his wife in the shop.
    
      The defendants’ counsel requested the Judge to charge the jury, that, in case either Jacob Burger (the husband) or the plaintiff bestowed their daily labor in and upon the business carried on, and “ such labor was a part of the avails with which the property in dispute was purchased, then, in that case, the plaintiff could not recover.”
    The Judge charged, among other things, that a married woman, having no property of her own, cannot carry on business, and, by purchasing in her own name, or on her own credit, become the owner of the property so used, nor of property purchased with the profits resulting from such business. That, in judgment of law, such property is the property of her husband, and may be taken on an execution against her husband. But that she may buy, with her separate estate, any property she pleases, and it will be hers, and cannot be taken on such execution, and she may sell any property which she has so bought, and the consideration received will be hers.
    That the husband is entitled to the services of his wife, and is bound to provide for her support.
    That, in this case, the practical question is, did she (the plaintiff) purchase this property exclusively with her own money, and carry on the business without any assistance from, or interference of her husband. If she did, and. if he did nothing for her support, she is entitled to recover, notwithstanding she bestowed her labor and services in and about the business, and thus added, to the extent of their value, to the profits of the business; but if she allowed her husband to interfere with the business, or to control it, or if he labored in it in carrying it on, it must be treated by you (the jury) as his property, and the defendants will be entitled to your verdict.
    To the refusal of the Judge to charge as requested, and to that portion of the charge which stated that, notwithstanding she bestowed her labor, etc., she might recover, if her husband did nothing for her support, etc., as above recited, the defendants excepted.
    On the trial, after the parties had both rested, and the summing up was begun, the Judge opened the case to permit proof of the value of the property taken; and it being stated by the defendants that their witnesses on that subject had left court, the Judge gave the defendants until the next morning to produce their witnesses on that subject.
    A motion was made for a new trial, upon what precise grounds it does not appear, but the Judge at Special Term, apparently, thought that the defendant may have been surprised by this course of proceeding, in regard to the question of the value of the property, and made an order permitting a new trial, if the defendants would confine the inquiry, on such trial, to that sole question.
    The defendants appealed, as well from the order made on the motion for a new trial, as from the judgment entered upon the verdict.
    
      J. M. Eager, for respondent (plaintiff).
    
      A. L. Pinney, for appellants (defendants).
   By the Court. Woodruff, J.

There was no sufficient ground for ordering a new trial, as upon a verdict against evidence. The testimony is, in some degree, conflicting. That of the plaintiff’s principal witness, Charles Burger, is, in some particulars, contradictory of itself. The credibility of some of the” testimony was in question, but, after a careful examination of the evidence, as it appears on paper, we are clear that the verdict of the jury must stand. Even though we were suspicious of the truth of the plaintiff’s case, we should be constrained to say, that, with the witnesses before them, the jury were better able to dispose of the questions of fact, amid inconsistencies, contradictions and questions of integrity in the witnesses, than we are; and as the case now appears, on paper, we cannot say that a preponderance of evidence is not in the plaintiff’s favor.

As to the qualification, annexed by the Judge at Special Term, it must suffice to say, that the granting of the new trial was not a matter of right, if the verdict was not against evidence, and no rule of law was violated; and upon this view the Judge at Special Term appears to have acted. No error was committed by the Judge at the trial, in opening the case, after the parties had rested: it was entirely discretionary with him to do so or not.

The permission, therefore, given at Special Term to the defendants to try the question of value further, was a mere privilege—it was not a right.

If, therefore, no error in law was committed at the trial, the judgment and the order appealed from must both be affirmed.

Whatever subdivisions may be made of the subject, there is, in ' truth, but one question, viz.: Where a husband does nothing for the support of his wife, may she employ her separate property in trade, bestowing therein her own time and labor, and yet retain the capital and profits as her separate estate? or does the fact, that her services are devoted to the prosecution of the business, make the whole property her husband’s, or subject it to the payment of his debts?

The jury, in this case, must be taken to have found, that the property, employed by the plaintiff in her business, was purchased by her, with her separate estate received by her from her father.

That her husband is, what the witnesses have described, in terms of marked significance, an idle fellow;—

That he has, for some years, passed his time around porterhouses and beer-cellars, and does nothing for the support of his wife.

That, left in this way to provide for her own support, she has -occupied herself in conducting a meat shop, and invested therein her own separate property; and if any profits have been derived from this employment of her separate property, combined with her labor, both capital and profits, now, consist in the meats which the defendants have seized, as the property of her husband, and applied to the payment of a judgment against him.

The case of Freeman v. Orser, decided at the General Term of this Court, in March, 1866, must be taken to decide, that where a married woman having a separate property engages therewith in trade, and she and her husband unite their labor and services in carrying it on, living together, apparently, out of the proceeds of the business so jointly conducted, and the profits of such business are added to the capital employed, the whole property loses its separate character, and ceases to be exempt from liability for the husband’s debts.

With this rule, as applied in the case then before the Court, we do not deem it necessary to contend.

Nor do we deem it necessary to refer to the authorities discussed in the opinion of Mr. Justice Slosson in that case, nor to repeat the able argument by which the conclusions are sustained.

If, in the progress of those arguments, propositions are stated which are in conflict with the right of the plaintiff to retain her verdict in this case, we think they should be understood with reference to the state of facts then before the Court, and should be limited to the circumstances to which they are applied.

With the statement of the general rules applicable to the separate estate of a married woman, and her power over it, we fully concur.

The general rule, that a husband is entitled to.the services of his wife, is not abrogated by the Statutes of 1848 and 1849. But it may be plausibly, and, we think, justly insisted, that those statutes, in conferring upon her the power to receive, hold and dispose of property, as if she were a feme-sole, have, by necessary implication, authorized her to devote so much of her time to her separate estate as may be necessary for its care and disposal. A power to receive, hold and dispose of property, would seem to imply the right to employ therein so much of her time and labor as may be necessary, to enable her to avail herself of the benefit of the statute.

Again, the general rule, that a married woman is not competent to make contracts binding herself personally, is not altered by the statutes referred to. But, on the other hand, she could, in equity, charge her separate estate, before these statutes were passed; and she certainly has no less power, in that respect, under the acts referred to.

A married woman could not, as a general rule, become a sole trader, and enjoy the proceeds and profits of a business carried on by herself, except in virtue of a valid arrangement, amounting, in substance, to a settlement assented to by her husband. But, under such an arrangement, she would be protected in equity, and the profits of the business would be deemed her separate estate, and would not be liable for the debts of the husband. Such an arrangement was, ordinarily, effected by the intervention of trustees, and, now, it may, no doubt, be effected without that intervention.

An agreement, made by the husband, in articles executed before marriage, in consideration of marriage, that she might carry on business on her sole account, would secure to her, her earnings in such trade, as her separate property, and those earnings would, in equity, be protected. Under the statutes referred to, trustees being dispensed with, she may, under such ante-nuptial contract, employ her separate estate in business so carried on.

A settlement, made by a husband after marriage, though binding on himself and his representatives, may be impeached by his creditors as a voluntary settlement, unless it be made upon valuable consideration. But it is not clear, that, under all circumstances, the assent of the husband to her employing her own time, in the care and management of her own separate property, is to be deemed a gift to her which creditors of the husband may impeach ; still less does it follow, because her services have been so devoted to the management of her property as to have added thereto, that, therefore, her husband’s creditors may treat the whole as the property of the husband, and seize it for his debts. We are not aware that the existence of the conjugal relation gives to the husband’s creditors such a right to her services, that the assent of the husband may not permit her to employ them, for her own benefit, in any manner she may choose. The argument is, that, though her husband’s creditors cannot compel her to labor for their benefit, still, if she do labor, and her labor is productive, although her husband assent to her enjoyment of the fruits of her labor, his creditors may dissent, and may take those earnings, in spite of both.

But there is a consideration, connected with the case before us, which may, and ought to affect the rights of the present plaintiff, in a manner not forbidden by the principles above adverted to, nor by the case of Freeman v. Orser.

The title of a husband to the services of his wife, is connected with his correlative duty to support her. The wife is entitled to her support, and, if her husband do not furnish it, she may earn it for herself. To this we apprehend there will be no dissent.

Again, under a statute, giving to her the right to hold, and enjoy, and dispose of her own property, and the rents,.issues and profits thereof, as if she were a feme-sole, she has the clear right to invest that property as, in her discretion, she sees fit; and if such investment be productive of profits, the profits are her own; and we think it equally clear, that she may intrust it to a third person to trade therewith, and account to her for the profits.

And if her husband do not support her, and she is, therefore, put to the necessity of employing her own labor to obtain a support, we perceive no reason, in equity, why she may not devote that labor to the care and management of her separate property, making it thereby productive for her own maintenance.

This is no new doctrine. Though a husband could not, after marriage, make a voluntary settlement of property upon his wife" which creditors might not impeach; yet, it is said, that if a husband agree, in articles before marriage, that his wife may carry on business on her sole account, or if he permit her to do so afterwards, what she earns will be her sole and separate property, subject only to such demands arising in the trade which should properly be charged upon it. And the case of a married woman deserted by her husband, seems to us to be, in principle, like the present; for, surely, in a court of equity, it can make little difference whether a husband departs, abandoning his wife altogether, or neglects his duty to support her, spends his a time at porterhouses and dram-shops, virtually abandoning her, and adding to her trial the mortification of sharing in some degree his disgrace.

The case of Cecil v. Juxon, (1 Atk. 278,) is an example of desertion. The husband deserted his wife and children, and went abroad. Her friends provided her with goods with which to carry on business as a milliner, and permitted her to take the profits. Out of her savings, she lent money and received notes. After an absence'of some years, the husband returned, possessed himself of the goods used in her trade, and of the notes received for her loans. The Court of Chancery, on her application, declared, that she was entitled to them, as her separate property, and decreed accordingly.

See this subject discussed, and other cases referred to, 2 Roper on Husband and Wife, p. 171-2, etc.

We conclude, with saying, that this case is distinguishable from Freeman v. Orser, in this, that there the business was carried on by the husband and wife jointly, though in the wife’s sole name. The earnings of the wife were not distinguishable from those of her husband; it was impossible to identify her sole and separate property; it had been absorbed in the business, and blended with his and her earnings.

We think, that where a husband does nothing for the support of his wife, and she, having separate property, employs herself in trading therewith, with his knowledge and assent, he neither assisting nor interfering therewith, such property does not become, in equity, liable for his debts. It remains, with its proceeds and profits, her sole and separate property.

This Court, being bound by the rules of equity, as well as of law, are bound to recognize the equitable rights of the plaintiff in this respect.

It follows, in our judgment, that there was no error in the Judge’s charge, of which the defendants can complain. The Judge went very far in their favor when he said, that, “ if she allowed her husband to interfere with the business,” the property must be treated as his property.

The judgment and order appealed from must both be affirmed. 
      
      
        Freeman v. Orser (5 Duer, 476).,
     