Andrews v. Monilaws

15 N.Y. Sup. Ct. 65

• Court: New York Supreme Court
• Decided: June 15, 1876
• Status: Published

Opinion

GILBERT, J.:

A promissory note of a married woman, made in the course of her separate business, or which is for the benefit of her separate estate, is a valid contract and may be enforced at law in the same manner as if she had not been married. Formerly such a contract was treated as an appointment of, or charge upon, the separate estate of the married woman, and the only remedy for its enforcement was by bill in equity. But that mode of proceeding to enforce such contracts has been entirely superseded by legislation. By section 7 of chapter 172 of the Laws of 1862, it is enacted, that a married woman may be sued in any of the courts of this State, and whenever a judgment shall be recovered against a married woman the same may be enforced by execution against her sole and separate estate in the same manner as if she were sole. Sections 274 and 287 of the Code provide the same remedy by judgment and execution against a married woman as the law affords against other persons, with the single qualification that the execution can be levied and collected only of her separate property. The language of these statutes is perfectly plain. If, however, they were susceptible of a construction against their manifest intent, which would enable us to uphold this proceeding, we should not apply it. The statute having given a legal remedy which is adequate, there is no occasion for administering equitable relief. The enactments cited are m pari materia with the special statutes for the protection of married women, and they should be so construed as to insure to them the same protection against a sacrifice of their property which the law gives to femes sole, namely, levy, advertisement, right of redemption, etc. The more summary and expensive remedy pursued in this case, of foreclosing a lien or charge, thereby cutting off the right of redemption, which is given by statute to all persons whose lands have been sold on execution, we think is in contravention of those enactments. So are the authorities. (Hier v. Staples, 51 N. Y., 136 ; Corn Ex. Ins. Co. v. Babcock, 42 id., 613 ; Peack v. Lemon, 1 Lans., 295; Baldwin v. Kimmel, 16 Abb., 353 ; 1 Wait’s Pr., 124.)

The judgment was taken by default, yet it gives the plaintiff greater relief than is demanded in the complaint. For that reason also it should be set aside. (Code, § 275.)

The order appealed from should be reversed, and an order should be entered vacating the judgment and all subsequent proceedings, with ten dollars costs at Special Term, and ten dollars costs on this appeal, besides disbursements.

BaeNAbd, P. J., concurred. Dyeman, J., not sitting.

Order reversed and motion granted with ten dollars costs of motion and ten dollars costs of appeal, and disbursements.