Henderson agt. Easton.

1849, EDMONDS, Justice, in the Case of Coit agt. Coit, decided that a wife could not sue her husband, without a next friend, except in the single case of a suit for an absolute divorce (4 How. Pr. R. 232, S. C.; 2 Code R. 94). This decision was affirmed on appeal at the general term of the Supreme Court, in the first district, in May 1850 (3 Code R. 23; 6 How. Pr. R. 53), was followed by ROOSEVELT, J., at the New York special term of the Supreme Court in January 1851, in the case of Wells agt. Underhill (6 How. Pr. R. 396), and was adhered to by EDMONDS, J., in the case of Forrest agt. Forrest, April 19, 1851 (3 Code R. 254). On the contrary, Judge CAMPBELL, at a special term of the Superior Court of the city of New York, in April 1850, held that a married woman might sue for a limited divorce alone, and without a next friend (3 Code R. 18; 2 Sand. S. C. Rep. 715). MUNSON, J., at the Otsego special term of the Supreme Court in April 1850, held the same doctrine (4 How. Pr. R. 446). And MARVIN, J., at a special term of the Supreme Court in Erie county, in October 1850, decided, and he says on a consultation with all the judges of the district, that no next friend was necessary, to enable a married woman to sue her husband for a separation on the ground of cruel and inhuman conduct (3 Code R. 183). By the Code of 1851, the 94th section of the Code of 1848 (114th section of the Code of 1849) is amended so as to read as follows:

§114 (94). "When a married woman is a party, her husband must be joined with her, except that,

1. When the action concerns her separate property, she may sue alone.

2. When an action is between herself and her husband, she may sue or be sued alone. But when her husband can not be joined with her, as herein provided, she shall prosecute or defend by her next friend."

The amendment of 1851 consists merely in adding the last clause, and it was evidently designed to settle the conflicting opinions that had before existed, and the law on the subject of a married woman's right to prosecute or defend suits in her own name. The plain and simple reading of the section, as amended in 1851, is that in all cases where a married woman is a party

Henderson agt. Easton.

to an action, her husband must be joined with her, unless the action concerns her separate property, or is between herself and her husband; and that in such cases she shall prosecute or defend by her next friend. According to this amendment it would appear to be necessary that a married woman should have a next friend, in an action against her husband for an absolute divorce. This was so held by HAND, J., at a special term of the Supreme Court in November 1851, in the case of Heller agt. Heller (6 How. Pr. R. 194), and by all the judges of the Superior Court of the city of New York, in the case of Meldora agt. Meldora, decided March 27th, 1852 (4 Sand. S. C. Rep. 721). This construction of the 114th section of the Code, was not disapproved by the commissioners or the legislature, in their amendments of the Code, April 16, 1852, and may now be considered the settled law on the subject. This motion does not necessarily include an inquiry into the practice in those cases where a husband or a wife may, for special reasons, on an application to the court, obtain leave to answer separately, and it is, therefore, not examined. In the case under consideration, the plaintiff's complaint is against Ann Eliza Easton, defendant, on a simple promise by her, to pay money, as though she were a single woman. The answer is in her own name, and states that she was at the time of the commencement of this action, and still is, a married woman, and that her husband resides in the county of Livingston, where the venue is laid. Wherefore she claims judgment of the complaint, that it may be dismissed. The answer is a felo de se by her own showing; her husband ought to have been joined with her, or she ought to have answered by her next friend; she could not defend in her own name. The answer, as it is, is a nullity and might have been disregarded; and may, for the same reasons, be taken from the files of the court. The motion to take the answer from the files of the court is, therefore, granted. The defendant does not ask to have the irregularity corrected by the appointment of a next friend.

Williams agt. Upton.

COUNTY COURT.

WILLIAMS agt. UPTON.

A reply is not proper unless the answer sets up as a defence a counterclaim " as defined by § 150 of the Code.

It seems, that § 154 must have been overlooked in the amendment of the Code in 1852, for the reason that that section is inconsistent with the other sections upon the same subject, in containing the word "defence " instead of "counterclaim."

Westchester County, May 1853. This was an action of trespass upon land. The defendant answered by denying the whole of the plaintiff's complaint, and averred title to the locus in quo in himself. To which answer the plaintiff replied by denying the defendant's averment.

The defendant now moves to strike out the reply.

ROBT. COCHRAN, for Defendant.

JOSEPH W. TOMPKINS, for Plaintiff.

JOHN W. MILLS, County Judge.-By section 149 of the Code of 1852, an answer must contain a general or specific denial of each material allegation of the complaint intended to be controverted by the defendant, and if the defendant has a defence or a counter-claim, he must set out in his answer a statement of such defence or counter-claim.

The 153d section tells us what the reply must contain, and by that it seems when the answer contains new matter constituting a counter-claim, the plaintiff may reply, &c.

The question now arises, what is a counter-claim? and it must be confessed that without the aid of the Code, the meaning of that word would be somewhat doubtful; but the 150th section. relieves us from that doubt. A counter-claim, as defined by that section, is a claim existing in favor of a defendant against a plaintiff (and it must be a cause of action) arising out of contract, or the transaction set forth in the complaint or connected with the subject of the action; and in an action arising on con

Williams agt. Upton.

tract, any other cause of action also arising on contract, and existing at the commencement of the action, is a counter-claim.

The defence set up in the answer in this action does not fall within either of these definitions of a counter-claim, but it is a defence entirely separate and distinct from, and in no way connected with, or growing out of the transaction set forth in the complaint.

The counsel for the plaintiff insisted, upon the argument, that by section 154 he was bound to reply in order to save the plaintiff from the consequences of that section; bút I think that section 168 saves him. For by that section "an allegation of new matter in an answer, not relating to a counter-claim, is to be deemed controverted by the adverse party, as upon a direct denial or avoidance, as the case may be.

The legislature evidently intended to do away with the necessity of a reply in all cases, except in those cases where a counter-claim, as defined by the 150th section, was set up as a defence. It is also quite evident that section 154 was overlooked in the amendment of 1852; and in order to make the Code consistent and that section sensible, it must be construed and applied as it would be if the word counter-claim, instead of the word "defence" was contained in it (Quin agt. Chambers.-N. Y. Legal Observer, 155).

The motion must be granted; but as the question is a new one, and this decision adverse to the views entertained by other judges, it must be without costs to either party.

Sullivan agt. Brewster and Gale.

NEW YORK COMMON PLEAS.

SULLIVAN respondent, agt. BREWSTER AND GALE, appellants.

The lien law passed July 11, 1851, applies to cases where the contract was made before its passage, if the labor was performed or the materials furnished afterwards, and is not in that respect unconstitutional.

The claimant must show that a payment has become due upon the contract of the owner before he is entitled to recover.

A judgment of non-suit, or dismissal of the proceedings on the trial is a bar to a second proceeding to enforce the same lien.

General Term, May 1853. Present, INGRAHAM, First Judge, Judges DALY and WOODRUFF. This was an appeal from the Justices' Court of the 4th District. The action was brought under the mechanics' lien law passed 11th July, 1851.

The defendants set up in their answer a former suit for the same claim, and a judgment of non-suit or dismissal of the complaint therein as a bar to any recovery in this action.

The plaintiff demurred to this part of the answer and denied the defendant's allegations as to the claim.

Upon the trial of the cause the defendants admitted the contract between them for erecting the building for Brewster, and that the plaintiff had a claim against Gale, the contractor, as claimed, for $81,37. That the papers creating a lien were duly filed in January, 1852; that proceedings were commenced to foreclose the lien, and a judgment of non-suit was granted in that action, and that the present action is on a second notice under the same lien.

The Justice rendered judgment for the plaintiff for the claim. Defendants appealed to this Court.

WM. P. LEE, for Appellants.

NILES and BAGLEY, for Respondent.

INGRAHAM, First Judge. This action was brought in the court below to enforce a lien created under the mechanics' lien law. The defendants in their answer made a general denial of the plaintiff's claim, and set up as a bar a judgment of non-suit