51 N.Y. 8 | NY | 1872
The defendant insists upon the common-law rule, that the husband is entitled to all the personal property and choses in action of the wife. Under this rule, the money which she received from her father's estate, in 1847, became his property. (Ryder
v. Hulse,
But it is well settled that a court of equity will make a settlement for the support of the wife out of any property received by the husband in her right. He might allow the wife to retain her separate estate, and if he borrowed her money there was a valid consideration in equity to repay it. A promise to repay money so borrowed by the husband cannot be regarded asnudum pactum. (Babcock v. Eckler,
The same rule prevailed when Mr. and Mrs. Woodworth were married, in 1846. (Savage v. O'Neil,
Under the rules of pleading and practice, as prescribed by the Constitution of 1846 and the Code of Procedure, the equitable rights of the plaintiff may be considered in this action. The plaintiff may avail herself of these rights to overcome the strict common-law rule insisted on by the defendant, without resorting to a separate action for that purpose.
The plaintiff could lawfully purchase property and carry on an independent business, employing her husband as her agent. (Knapp v. Smith,
Whether the payment to the wife, in 1857, was fraudulent and void, was a question of intent under the statute, and is to be considered as a question of fact, and not of law. Prima facie, the case for the plaintiff was sustained by the evidence.
We should disregard the plain meaning and intention of the statutes in favor of married women, were it held that the plaintiff was not, as matter of law, in good faith carrying on a separate business for the benefit of her separate estate.
It was for the defendant to prove that the acts of the plaintiff, in carrying on this business or employing her husband as her agent, were not in good faith. It cannot be held as a presumption of law.
The order should be affirmed with costs, and the case remitted to the Supreme Court with directions to assess the plaintiff's damages, and enter judgment in her favor upon the stipulation of the defendant.
All concur.
Order affirmed, and judgment accordingly. *12