Bogert v. Gulick

65 Barb. 322 | N.Y. Sup. Ct. | 1873

By the Court; Fahoher, J.

The defendant did not, on the face of the note, charge, in express terms, her separate estate. The case of the Corn Exchange Ins. Co. v. Babcock, (42 N. Y. 613,) is not, therefore, authority against her defence. Had she made the note a charge on her separate estate, by its terms, she might perhaps, be estopped from asserting that it was not given for the benefit of her separate estate. (Todd v. Ames, 60 Barb. 462. Foster v. Conger, 61 id. 147.) The note itself bears no evidence that the defendant charged, or intended to charge, her separate estate. It is clear, upon the evidence, that the note was not used in reference to, or for the benefit of, the business or separate estate of the defendant. It does not help the plaintiff to show that she conducted business on her own account and in her own name; nor that her husband, as her agent, carried on the business; nor that representations, as to the business character of the note in question, were made to the plaintiff. It comes back to this, was the note made or negotiated in respect of the business or separate estate of the defendant %. If not, it is void. The legal incapacity of married women to make valid contracts is the same now as it was before our late statutes, unless the contracts relate to their business or separate estates. Except as to her business and her separate estate, the attempted obligations of a married woman are void. By virtue of the statutes of 186Q_and 1862, relative to the rights of married women, (Laws of 1860, ch. 90; Laws of 1862, ch. 172,) a married woman may make bargains, carry on trade or business, and perform labor and services, on her own account, and for her exclusive benefit, as if she were unmarried; and all her earnings belong to her, as her sole and separate property. (Foster v. Conger, 61 Barb. 145.) But, except in the instances where the transactions concern her separate business or her separate estate, her obligations are void. This principle has been often asserted. (Hansee v. De Witt, 63 Barb. 53. Vansteenburgh v. Hoffman, 15 id. 28. Edw. on Bills, 66-68.) Our statutes have not removed from married women their common law disabilities, except as to their transactions in their separate business, or relating to their separate estates. (Yale v. Dederer, 22 N. Y. 460. Corn Exchange, Ins. Co. v. Babcock, 42 id. 639. Deck v. Johnson, 2 Keyes, 348.)

The evidence fully warranted the finding of the court, that the note in question was not made or given in any business of the defendant; that neither she nor her separate estate derived any benefit therefrom; that no consideration was received by her for the note; that it is not stated in the note that she charged, or intended to charge, her separate estate with the payment thereof; that the policy was not issued, to procure which the note was made; and that the note was diverted from its intended use by Cohalen, who, for his own benefit, sold it to the plaintiff. It follows from these facts, that the note never had any validity or legal inception; and it is absolutely void. At common law a married woman cannot be a party to a bill or note; and the contracts she is enabled by statute to make, are such only as are made in the business she conducts on her own account, or such as relate to her separate property. She is not enabled to give an accommodation note, nor one unconnected with her separate business or property ; and a person taking such a note, though bona fide and for value, cannot re-cove? upon it against her. (Corn Exchange Ins. Co. v. Babcock, 57 Barb. 227. Scudder v. Gori, 18 Abb. Pr. 223. Hansee v. De Witt, 63 Barb., 53. Kelso v. Tabor, 52 id. 125, 129.)

[First Department, General Term, at New York, May 5, 1873.

Ingraham and Fancher, Justices.]

The judgment appealed from should be affirmed, with costs.