Palmer v. . Davis

In determining whether the submission to arbitration in this case was valid as against the plaintiff Nancy E. Palmer, it is material to observe that the matter submitted did not embrace a claim against her, but only the claim which she and her husband, or one of them, had preferred against the defendants. There could not, therefore, by any possibility, have been an award for the payment of money or the delivery of any property by her to the defendants, or either of them. The only determination which could have been made to her prejudice was that she had no claim against the defendants, or one for only a smaller amount than that which she set up. It should further be premised that the demand in question arose out of property which she owned in her own right, and which it is to be intended she held under the statutes of 1848 and 1849, which allow married women to hold property and to dispose of it as if she were unmarried. It appears, further, that the defendants were bound to her under contracts, to which no objections are taken, to account to her respecting certain sales already made, of real estate in which she was interested. The power of Mrs. Palmer over these claims was at least as good as though they represented property held to her sole and separate use, in respect to which property a married woman has long been regarded in the light of a feme sole. In regard to claims arising out of such a state of facts, I am of opinion that a married woman may become a party to any agreement, not otherwise unlawful, for the determination of a controversy whether a particular claim set up by her is valid, and what sum is owing to her on account of it, provided her claim exists. (Hulme v.Tenant, 1 Brown's Ch. R. 16; Billing's Law of Awards, 27.)

I observe that the statute respecting arbitrations (2 R.S. 541, § 1) excepts married women from the category of persons who may enter into submissions under that statute, classing them with infants and persons of unsound mind. So far as there was a necessity for an enabling statute to sustain this submission, the plaintiff would not be aided by the provisions of the revised statutes. But if such a submission as this would be valid at common law, as I have supposed, there is nothing in the statute to forbid it. (Burnside v. Whitney, 21 N.Y.R. 148.) The same answer may be given to the objection that this submission was unlawful by the second section of the statute of arbitrations, which forbids a statutory submission of the claim of any person to any estate in fee or for life to real estate, if such had been the character of the claim in this case; but as I understand the evidence, the controversy related to the liability of the defendants to account for the proceeds of real estate which had been sold by them under a former agreement between the parties.

The exceptions founded on the refusal of the referee to rehear the matters determined by the arbitrator can not be sustained. No sufficient ground was set up in his answer to enable the defendants to impeach the award as the result of corruption, or such gross misbehavior as would be evidence of fraud.

It is objected that the plaintiff should have sued by next friend, and not with her husband. Such was the law when this action was commenced, but by the code as it now exists she might sue alone. (§ 114.) But I think the objection was waived by the omission to demur. One of the causes of demurrer which is deemed waived by not being thus objected to, is that the plaintiff has not a legal capacity to sue. As the law was when the pleadings were put in, Mrs. Palmer could only sue by a next friend. By herself she had not a standing in court which would enable her to maintain an action. But the defendant elected to answer on the merits, and thus precluded himself from taking the objection at a subsequent stage of the case.

I am, therefore, of opinion that none of the defects averred exist in the record, and that the judgment should be affirmed.

All the Judges were for affirmance, EMOTT, J. on the grounds stated by DENIO, Ch. J.

Judgment affirmed.