Osborn v. Nelson

By the Court, Johnson, J. This is an appeal from an order of the county court of Cattaraugus county, granting a new trial on a case and exceptions,11 on motion of the plaintiff. The action was commenced in a justice’s court, where the plaintiff" had a judgment. The defendants appealed to the county court, and on the trial in that court, at the close of the plaintiff’s testimony, the jury were directed to find a verdict for the defendants. Afterwards, on a case and exceptions, the same court granted a new trial. We see no reason to interfere with the order grant [381] ing a new trial to the plaintiff. Before this court will reverse such an order, it must be made clearly to appear that the court below has committed some error of law. Ho such error is shown. On the contrary, it appears to us that the new trial was very properly , ; - ted, in view of all that appeared and was offered to no proved by the plaintiff, on the trial. ■ In any view of the case, as the evidence stood when the plaintiff vested, the action was properly brought by the plaintiff m her own name. Her husband, and the father of the ffmor son, for whose services the action was brought, had many years since abandoned the plaintiff and hi;; family, and gone- beyond the jurisdiction of the State, where he has ever since remained. He then ceased, wholly, to provide for his wife and family, and, so .far as he could, renounced his marital relations. He did not go beyond the jurisdiction of the United States,/it is true, but went to California and has never since Returned to this State,' or to his family. This has been b/éld to be equivalent to abjuring the realm by a husbandry at common law, so as to enable the wife to sue and be pued as a feme sole. (Chapman v. Lemon, 11 How. Pr. 235. Abbot v. Bayley, 6 Pick. 89. Gregory v. Pierce, 4 Metc. 478.) Ti4 case comes fully within the reason of the common law1 rule, and the rule ought to be made applicable to such caffes. There is the same necessity for the wife to act as a feme sole in obtaining credit, and acquiring property, for h/er personal support and protection, in such' a case as this, f|s there was at common law where the husband had abjured the realm. / The plaintiff offered to prove the services, and that she (had an assignment of the claim therefor from her son who performed the same. It is to be assumed, for the purposes of this appeal, that she could.have proved, had she been permitted, the services and the assignment. This claim was, therefore, her separate estate. And, under [382] our statutes for the better protection of the rights of married women, it was competent for her to maintain an action for the recovery thereof, in her own name. Without any reference, therefore, to the question whether the plaintiff, under'the circumstances, was entitled to the services of her minor --son, as her child and servant, it was enough that she was • assignee of the claim, to enable her to maintain the action in her own name and right. If it should become necessary for the plaintiff to amend her complaint in order that it may appear upon its face, more clearly and specifically, by Whom the service, for which the action was brought was in ..fact performed, there can be no difficulty in its being ató.ended upon the trial, or after the trial, to conform to the proof. [Fourth Department, General Term, at Rochester, March 6, 1871. Greater latitude of construction is sajways allowable in regard to pleadings in actions commenced in justices' courts, than in actions commenced in courts of record. There can probably be no question but that'vthis service of the son was the labor and service intended, to be set out in the complaint, so that the real cause of action would not be changed by the amendment. The difficulty? at best could only be technical. The variance would mot be deemed material, and would be wholly disregarded, unless it had actually misled the defendants to their prejudicio, in making their defense upon the merits. (Code, §§ 169, 170-) We are of the opinion, therefore, that thé order grafting a new trial should be affirmed. V Mullin, P. J,, and Johnson and Talcott, Justice.]