Janinski v. Heidelberg

28 N.Y. Sup. Ct. 439

• Court: New York Supreme Court
• Decided: June 15, 1880
• Status: Published

Opinion

Barrett, J.:

There is no doubt that, under the practice prevailing before the Code of Civil Procedure, a separate appearance for the wife in an action affecting only her inchoate-right of dower would have been improper. Both under the chancery practice and the Code of Procedure, where the action did not concern her separate estate, the husband was bound to enter a joint appearance, and put in a joint answer, for himself and wife. (Leavitt v. Cruger, 1 Paige, 421; Foote v, Lathrop, 53 Barb., 183; Eckerson v. Vollmer, 11 ; Ferguson v. Smith, 2 Johns. Ch., 139; Lathrop v. Heacock, 4 Lans., 1.) It was the husband’s right and duty to employ an attorney for her, and she was bound by it. (Same cases.)

But this rule seems to have been changed by section 450 of the Code of Civil Procedure. “ That section,” says Mr. Throop in his notes, “ was intended to sweep away all distinctions between a feme sole and a feme covert, in respect to suing and being sued.” Certainly, the language of the section could not very well have been broader. “ In an action or special proceeding, a married woman appears, prosecutes or defends alone or joined with other parties, as if she were si/rigleS Under this comprehensive provision, we think that Mrs. Heidelberg has a right to appear and defend .by her own attorney, in form as though she were single.

This order should therefore be reversed, with $10 costs and disbursements of the appeal, and the motion to vacate the notice of appearance be denied.

Davis, P. J., concurred. Present — Davis, P. J., and Babbett, J.

Order reversed, with $10 costs and disbursements, and motion denied.