Morrell v. Cawley

17 Abb. Pr. 76 | N.Y. Sup. Ct. | 1863

Lead Opinion

Leonard, J.

The lease being under seal, was void for want of authority to the husband to execute it. ¡No action could therefore be maintained on the lease as a contract of the defendant. The action was, therefore, properly brought against the defendant for use and occupation, if she could be subjected to any liability therefor by the facts.

Under the act of 1860, a married woman may be sued in all matters respecting her separate estate as if she were a single woman. (Barton a. Beer, 35 Barb., 78.) This statute relates. to the form of the action as well as to the parties.

The lease, although not good as the foundation of an action against the defendant, was evidence against her as an admission, if her husband was authorized to execute a lease for her without seal. It required no written authority to sign the defendant’s name. The seal did not injure its validity as an admission.

Upon the question of the authority of the husband to act for the defendant, we have her affidavit showing that her husband was her authorized agent during the greater part of the time for which the rent is here claimed, and he also acted as her agent. When the rent was demanded of her, she made no objection that she had not occupied the premises. It also appears from the defendant’s affidavit, and her complaint in the action against Lyman, that she was carrying on the ship-chandlery business on her own account as a separate trader. This evi*83dence, although slight, was sufficient to go to the jury in respect to the occupation of the premises by the defendant, and for the jury to consider whether the defendant knew of the lease, or had authorized her husband to lease these premises. If she carried on her own separate business, occupying these premises, and knew of the lease, or authorized one with or without seal, then the lease was admissible evidence to prove the rate of rent which the defendant ought to pay, and the objections taken by the defendant cannot be maintained.

The jury found in the affirmative on all these propositions.

The cause was properly submitted to the jury on the evidence, and the motion to dismiss the complaint denied. Ho exceptions were taken to the charge.

The judgment should be affirmed, with costs. 0





Concurrence Opinion

Barnard, J.

I concur in the conclusion to which Judge Leonard has arrived.





Dissenting Opinion

Sutherland, J.

I dissent. I see no way in which the plaintiff could recover in this action. The judgment, I think, should be reversed, with costs.

Judgment affirmed.