Cunard r. Francklyn.

comply with a demand for a copy of such account was properly refused.

(Decided June 19, 1888.)

Appeal by plaintiff from an order denying a motion made by him that the defendant be precluded on the trial of this action from giving evidence of an account asserted to be set up in the answer.

The material facts are stated in the opinion.

William C. Beecher, for plaintiff-appellant.

John Notman, for defendant-respondent.

BARTLETT, J.-This is an action for conversion. The defendant in his answer denies the alleged conversion, and avers, among other things that securities and cash to a large amount were left in his hands by the plaintiff, under an arrangement by which the defendant was to invest, use, and employ the same in such transactions and enterprises as he should think best for the joint account and risk of the parties.

He further avers that many heavy loses were incurred in the course of such transactions and enterprises, which were paid out of the plaintiff's property, and with his knowledge; that the defendant, from time to time, rendered the plaintiff statements of account; and that "in or about the months of June and July, 1885, at the city of New York, the plaintiff and the defendant, upon a full consideration and discussion in respect to all such matters, and of the transactions and accounts between them, all of which the plaintiff acquiesced in, settled and adjusted their accounts, and it was thereupon understood and agreed between them that the defendant should be considered as indebted to the plaintiff in the sum of $608,396.58, with interest from that time, and that the plaintiff should give him such credit and time to pay off such

Cunard v. Francklyn.

indebtedness in installments as he, the defendant, might require for such purpose."

The plaintiff's attorneys, claiming to be entitled to a verified copy of the account referred to in the provision above quoted, under section 531 of the Code of Civil Procedure, served upon the defendant's attorneys a written demand for such account. This demand was not complied with; and thereupon the plaintiff moved at special term that the defendant be precluded on the trial of the action from giving any evidence of such account. The motion was denied upon the express ground that the aforesaid allegations in the answer did not set forth such an account as is referred to in section 531 of the Code.

We think the learned judge at special term took a correct view of the answer in this respect. The account which an adverse party may require to be delivered to him under section 531, is an account containing items. "It is not necessary," says that section, "for a party to set forth in a pleading, the items of an account therein alleged; but in that case he must deliver to the adverse party, within ten days after, a written demand thereof, a copy of the account which, if the pleading is verified, must be verified by his affidavit."

Of course this language would include an account stated where it contained items; but such does not appear to have been the character of the paper, if any paper was executed, which embodied the agreement pleaded in the answer, to the effect that the defendant should be considered as indebted to the plaintiff in the sum at which the plaintiff's demand was adjusted. It is true that accounts are alleged to have been considered and discussed in arriving at the adjustment, but those were the data or evidence upon which the parties reached their agreement, and cannot be said to constitute the agreement itself. We do not think the answer sets up any such account as entitled the plaintiff to a copy thereof under the Code, and the order which he sought to

Knight v. Abel.

obtain in consequence of the defendant's failure to serve such copy, was properly refused.

The order appealed from must be affirmed, with costs and disbursements.

BRADY and DANIELS, JJ., concurred.

KNIGHT, ET AL., APPELLANTS, v. ABEL, RESPONDENT.

SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM, MAY, 1888.

$549, subd. 4.

Order of arrest-when vacated because only part of cause of action

warrants arrest.

Where a complaint in an action set forth a single cause of action to recover upon four separate sales of merchandise made by the plaintiffs to the defendant, and there was sufficient proof in the papers upon which an order to arrest the defendant was granted to warrant a finding of fraud as to one of the sales but not as to all,-Held, that the order of arrest was properly vacated.

Easton v. Cassidy (21 Hun, 459); Fitch v. McMahon (3 N. Y. St. Rep. 142), not followed.

(Decided May 18, 1888.)

Appeal by plaintiff from an order of the New York county special term granting a motion made by the defendant to vacate an order of arrest issued against him herein.

The facts appear in the opinion.

John H. Atkinson, for plaintiffs-appellants.

Knight v. Abel.

Moses Hermann (Chas. O'Neil, attorney), for defendantrespondent.

BARTLETT, J.-This order of arrest was granted in an action upon a contract for the purchase and sale of eggs and butter, where it was alleged in the complaint that the defendant was guilty of fraud in contracting or incurring the liability (Code Civ. Pro. § 549, subd. 4). The complaint set out only one cause of action. Four separate sales were specified: one on July 13, one on July 18, and two on August 2, 1887. There was enough in the papers to warrant a finding of fraud as to the sales made on August 2, but not sufficient to warrant such a finding as to the prior sales.

In Easton v. Cassidy (21 Hun, 459), there was but a single cause of action, which was founded, however, upon different demands. Some of these demands were of a character which would support an order of arrest, and others would not. This general term held that the order of arrest was properly vacated.

A different view seems to have been entertained, in the second department, in the case of Fitch . McMahon (3 N. Y. St. Rep. 142). That case was subsequently affirmed in the court of appeals (103 N. Y. 690), but the decision there was placed upon different grounds from that of the general term, and does not touch the questions involved in this appeal. Under these circumstances, we must follow Easton v. Cassidy (supra), and affirm the order appealed from.

Order affirmed, with $10 costs and disbursements.

VAN BRUNT, P. J., and MACOMBER, J., concurred.

Fitzgerald v. Quann.

FITZGERALD, RESPONDENT, v. QUANN, IMPLEADED, ETC., APPELLANT.

COURT OF APPEALS, JUNE, 1888.

$ 450.

Action against a married woman —

- when husband a necessary party. defendant.

The rule that statutes changing the common law must be strictly construed, and that the common law must be held no further abrogated than the clear import of the statute absolutely requires, is too securely and firmly established and grounded in our jurisprudence to be altered other than by legislative interference. [1] Laws of 1862, chapter 172,-providing among other things that married women may be sued in any of the courts of this State, and whenever a judgment shall be recovered against a married woman, the same shall be enforced by execution against her sole and separate estate in the same manner as if she were sole,-does not apply to the case of a tort by a married woman committed during coverture, for which suit is also brought during coverture, and does not alter the common law in relation to the liability of a husband for torts committed by his wife. [2,3,4] Section 450, of the Code of Civil Procedure,-providing that in an action or special proceeding, a married woman appears, prosecutes or defends alone, or is joined with other parties as if she was single," which was amended in 1879, by providing that "it is not necessary or proper to join her husband with her in an action or special proceeding, affecting her separate property,”— does not change the common law rule, that a husband must be joined with his wife in an action against her for tort. [5,6] If it be assumed that under the section as it stood before the amendment, a married woman was to be sued alone in all cases as though she were single, the effect of the amendment is to state the cases when such joining is unnecessary, viz., in actions affecting the wife's separate property,-leaving it necessary in all other