Kowing v. Manley

By the Oourt, Lott, P. J.

Two material facts are established by the special findings of the jury in this case; first, that the bonds in question were delivered by the defendants to the plaintiff’s wife without his written order; and, second, that such delivery was fraudulently obtained by her. The plaintiff had given the defendants express instructions not to deliver the bonds to any person except upon such an order. The first finding, unaffected by the second, would therefore be sufficient to charge the defendants with their value. So, on the other hand, the fraud practiced by the plaintiff’s wife upon the defendants has made him responsible for the consequence of that fraud. (See Reeves’ Domestic Relations, 72; 2 Kent’s Com. 149, &c.; Goulding v. Davidson, 26 N. Y. Rep. 604, &c.) This rule of the common law is not changed or affected by the legislation in this State, giving married women the control of their property. While it relieves them from many of the disabilities formerly resulting from the marital relation, it does not discharge the husband from the liabilities which that relation imposed on him for the torts of his wife.

Under such circumstances the plaintiff should not be permitted to recover of the defendants damages resulting from an act of the defendants that was caused by a fraud for which he himself is legally responsible. If he himself had been a participant in the fraud, there certainly could not have been any recovery; and there is no reason or principle why he should stand in a better situation when the law makes him responsible for the act, although he had no actual participation in it.

[Dutchess General Term, May 14, 1868.

If the plaintiff should be permitted to recover in this suit, the defendants could immediately commence and maintain an action against him and his wife, jointly, in which a recovery would be had, to the amount of his judgment, for damages against them. Such a circuity of action would be inconsistent with the ends of justice, and with the principles which now prevail in the enforcement of civil remedies.

These views lead us to the conclusion that the general verdict was unauthorized, and as the last special finding of fact is inconsistent with that general verdict, it must, under section 262 of the Code, control the latter, and the defendants are accordingly entitled to judgment thereon, with costs.

Butt, P. J., and J. F. Barnard, Gilbert and Tappen, Justices.]