Stevens v. Bostwick

4 Thomp. & Cook 632

Opinion

E. Darwin Smith, J.

The referee clearly erred in dismissing the complaint in this action. The complaint set out a cause of action upon its face in favor of the plaintiff and against the defendant. The answer denied the complaint and set up a counter-claim.

If the defendant intended to make the defense that the plaintiff was a married woman and had no separate estate, or carried on no separate trade or business, he should have set up such a defense by answer. Freeking v. Holland, 53 N. Y. 422.

Coverture must be pleaded to be available if intended to be set up as a defense. 1 Ghitty on Plead. 449; Dillaye v. Parks, 31 Barb. 132. In Hallock v. DeMunn, 2 N. Y. Sup. 350, where it was held that -to maintain an action against a married woman it must be shown that the debt was contracted for the purpose of carrying on a separate trade or business and for the benefit of her separate estate, and the answer in proper form set up the defense in a denial of these facts, no question as to the form of the pleadings was -presented for consideration.

The judgment should be reversed and a n"ew trial granted, with costs to abide the event.

Judgment, reversed and new trial granted.