Hier v. . Staples

Lott, Ch. C. The evidence objected to by the appellant was admissible to show that the fact of the appellant’s coverture was not available as a defence. It tended to establish that the note was given for a debt incurred by herself, in the course of business transacted on her sole and separate account, which she could legally contract and be sued for in the same manner as if she were a feme sole, under chapter 90 of the Laws of 1860, as amended by chap. 172 of the Laws of 1862, *139 and that it was given for her own benefit upon a good and sufficient consideration, and not for the accommodation of her husband. In short, it showed a state of facts rendering the question of coverture wholly immaterial. (See Barton v. Beer, 35 Barb., 78; Porter v. Mount, 41 id., 561.) Earl, Com’r, in The Corn Exchange Ins. Co. v. Babcock (42 N. Y., 642), properly says, that a feme covert, in this State, is “ bound like a ferme sole by all her contracts made in her separate business or relating to her separate estate within the meaning of the acts of 1848, 1849, 1860 and 1862, and such contracts can be enforced in law or equity, as the case may be, just as if she were a feme sole.” All the evidence must, therefore, be considered as properly admitted. The question, then, remaining to be considered is, whether the motion to dismiss the complaint was properly denied. A brief reference to the several grounds on which the motion was founded will show that neither of them was sufficient. 1. The first ground is based on the unauthorized assumption that the complaint on its face shows that the appellant was surety for her husband. The fact of such suretyship, in the proper use of the term, is not alleged in the complaint, nor is it inferable from any statement therein. It is alleged that the appellant indorsed the notes, at the same time guaranteeing the payment thereof. There is no denial of that allegar tion. 2. The second ground is substantially the same as that which was urged against the admissibility of the evidence introduced to show that the note was given for the appellant’s debt, contracted in carrying on business in her own name, and is answered by what has been said on that question. 3. The third ground is wholly untenable. There were no allegations in the complaint that justified a prayer for a special judgment, charging the appellant’s estate with the debt, but the form of relief demanded was immaterial so far as it affected the appellant. The court may, after answer, grant a plaintiff any relief consistent with the case made by the com *140 plaint and embraced within the issue, and is not confined or limited to that demanded in the complaint (Code, § 275), and judgment may, in an action brought against a married woman, be given against her in the same manner as against other persons. (Id., § 274.) The judgment demanded was, in fact, strictly consistent with the facts stated in the complaint and proved on the trial, and it is conformable to, arid sustained by, the decision in the case of The Corn Exchange Insurance Co. v. Babcock, supra. 4. The fourth ground was clearly unavailable on the motion to dismiss the complaint. So far as it relates to a misjoinder of parties or causes of action, the objection was waived by the omission to raise it by demurrer or answer. (Code, § 148.) Again, assuming that there could not be a joint recovery against both defendants, that would not prevent a several judgment against either of them. (Code, § 274.) It follows from the views above expressed that the judgment appealed from should be affirmed, with costs. All concur. Judgment affirmed.