Opinion
Submitted September 28, 1874
Decided January term, 1875
Rollin Tracy for the appellant. H.V. Howland, for the respondent.
The several grounds here relied on by the defendant for the reversal of the judgment appealed from are reducible to two principal grounds; the first of which, in its proper order is: That the furniture given by the plaintiff to the defendant's wife, having been, with her consent, taken to the house of the defendant, and there, with other articles of furniture belonging to him, appropriated to household use, became thereby his property in equity as well as at law; and as authority for this proposition he cites Shirley v. Shirley (9 Paige, 363), in which the chancellor held that furniture purchased by a feme covert with moneys received for the rents of her separate estate, and which by her consent was mixed with the furniture of her husband, became thereby the property of the latter, as well in equity as in law, and liable to his debts. Such is not now the law, since, by the legislation of this State, every married female within it has been invested with the legal right to take, by gift and otherwise, real and personal property, and hold or sell and assign the same, for her sole and separate use. The simple appropriation of any portion of her personal property to household use by the husband and wife, or the husband alone, by her consent, does not render it the property of the husband and liable to his debts; but her assignment of it carries with it a right of action against whoever converts it ( Sherman v. Elder, 24 N.Y., 381, 384, 385), as did the assignment of the claim in this case.
The second ground relied upon, in its proper order, is: That the plaintiff, having taken this assignment from the wife, it is subject to all the equities of the husband; and, assuming that if the wife had not assigned her claim, her only remedy against her husband was by an action in equity, and hence that her assignor, the plaintiff, was limited to the same remedy, and could not maintain this action. To this, if there be any thing in it, there are two answers: The first is, that the ground was not taken at the trial; moving, before it appeared that the defendant was the husband of the plaintiff's assignor, that the complaint be dismissed upon the ground that it did not state facts sufficient to constitute a cause of action did not suggest it. The objection, after it appeared that he was the husband of the assignor, and when the plaintiff was about to prove of what articles the furniture given by the plaintiff to the defendant's wife consisted, that he could not, under the pleadings, prove that fact, did not suggest that the plaintiff's remedy was in equity rather than at law. Nor did the motion made at the close of the proofs, that the plaintiff had not proved facts sufficient to constitute a cause of action, contain a suggestion that the plaintiff's remedy was in equity and not at law. The second answer is: That the property assigned was such as, by statute, she was the legal, and not merely the equitable owner, and had the legal right to assign it; and in which the defendant did not, as against her or her assignee, show himself to have any equitable interest whatever.
The judgment should be affirmed.
All concur.
Judgment affirmed.