74 N.Y.S. 567 | N.Y. App. Div. | 1902
The action is brought to recover for the conversion of a United States bond of the par value of $1,000 and $165 in money delivered by the plaintiff to the defendant as her agent. The answer denied, each of the allegations of the complaint. Upon the trial the court submitted the case to- the jury with á charge to which there was no exception, and the jury found a verdict for the plaintiff. The question upon this appeaf is presented upon the. denial of a motion to dismiss the complaint at the end of the plaintiff’s case, renewed at the end of the defendant’s casé, to which rulings the defendant
The defendant based his motion to dismiss the complaint upon the ground that the plaintiff being a married woman could not maintain an action to recover this bond and money delivered to the defendant without proving that she had a separate estate, but this contention is based upon an evident misconception of the rights of a married woman under the law of this State. By section 21 of the Domestic Relations Law (Laws of 1896, chap. 272) it is provided that “ A married woman has all the rights in respect to property, real or personal, and the acquisition, use, enjoyment and disposition thereof, and to make contracts in respect thereto with any person, including her husband, * * * as if she were unmarried; ” and by section 450 of the Code of Civil Procedure it is provided that in an action or special proceeding a married woman appears, prosecutes or defends alone, or joined with other parties, as if she was single. There can be no question but what, if the plaintiff was a single woman, upon evidence that she delivered money or property to the defendant upon his promise to return them to her, she could maintain an action to recover such property without proof of other facts as to ownership. How she obtained possession of this money or property would be entirely immaterial to the defendant. As a married woman now sues in respect to such property as if she were single, a defendant who receives from a married woman money or property with a promise to return it to her, can no more object to her suing to recover possession of it on the ground that the source of her title to the property is not proved than he could if she were single.
Upon the whole case we think there was no substantial dispute as to the plaintiff’s right to recover; that the verdict of the jury was amply sustained by the evidence and that no error was committed which would justify a reversal of the judgment.
The judgment and order appealed from are, therefore, affirmed,with costs.
Van Brunt, P. J., O’Brien and Hatch, JJ., concurred.
Judgment and order affirmed, with costs.