Stevens v. Bostwick

9 N.Y. Sup. Ct. 423

Opinion

E. Darwin Smith, J.:

The referee clearly erred, in dismissing the complaint in this action. The complaint set out a cause of action, on its face, in favor of the plaintiff 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 defense by answer.

* Coverture must be pleaded, to be available, if intended to be set up as a defense, †

In Hallock v. De Munn, ‡ 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, 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 new trial granted, with costs to abide the event.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment reversed and new trial granted, costs to abide event.

Freaking v. Rolland, 53 N. Y., 422.

1st Chitty’s Pleadings, 449; Dillaye v. Parks, 31 Barb., 132.

2 N. Y. Sup. Ct., 350.