Allen v. Allen

CourtNew York Court of Appeals
Writing for the CourtPER CURIAM.
Citation246 N.Y. 571,159 N.E. 656
PartiesALLEN v. ALLEN.
Decision Date22 November 1927

246 N.Y. 571
159 N.E. 656

ALLEN
v.
ALLEN.

Court of Appeals of New York.

Nov. 22, 1927.


Action by Pearl La Van Allen against George W. Allen. From a judgment of the Appellate Division (220 App. Div. 759, 222 N. Y. S. 762), affirming an order of the Special Term which granted defendant's motion for judgment on the pleadings, plaintiff appeals.

Affirmed.

The action was for malicious prosecution and was brought by a wife against her husband. The question was whether, under section 57 of the Domestic Relations Law, such an action could be maintained.

Pound and Andrews, JJ., dissenting.


[246 N.Y. 571]Appeal from Supreme Court, Appellate Division, First department.

K. Courtenay Johnston, for appellant.

Edmund L. Mooney and Wilber W. Chambers, amici curiae.


Louis M. Kommel, George Boochever, and Max Zucker, for respondent.

Erederick Collin, amicus curiae.

PER CURIAM.

Judgment affirmed, with costs, on the ground that the later acts of the Legislature have left unchanged the rule adopted by this court in Schultz v. Schultz, 89 N. Y. 644.

CARDOZO, C. J., and CRANE, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur.
POUND, J., dissents in opinion, in which ANDREWS. J., concurs.

POUND, J. (dissenting).

The complaint states a cause of action for malicious prosecution. It has been dismissed because it appears that the defendant is the husband of the plaintiff. Malicious prosecution is a personal injury. Gen Cons. Law, § 37a (Cons. Laws, c. 22). The question is whether the fiction of legal unity or the concept of public policy adumbrated thereby defeats the right of the wife to sue her husband for personal injuries [246 N.Y. 572]under existing statutes. The law of the rights of married women has been evolved from the ‘archaic period of our race’ (Earl, J., in Bertles v. Nunan, 92 N. Y. 152, 156,44 Am. Rep. 361), when husband and wife were regarded in law as one person, to its present status where the recognition of the wife's separate person and property is practically complete. The Married Women's Acts are held to have no relation to or effect upon real estate conveyed to husband and wife jointly, and they take, as at common law, as tenants by the entirety. Bertles v. Nunan, supra. This is a rule of property rights which stands until the Legislature changes it. It is also assumed to be the law of New York, as held in 1882 in Schultz v. Schultz, 89 N. Y. 644, that a husband may libel or slander his wife, wife, prosecute her without probable cause on criminal charges, assault her, or falsely imprison her without subjecting himself to liability to her for damages, not because he is within his legal rights in thus injuring her, but because the Legislature has failed specifically to include the husband in the general grant to her of the right to sue for injuries to her person. With these exceptions, the fiction is well nigh as archaic as its origin, and we are therefore asked to reconsider the doctrine of the leading case as applied to existing statutes.

The question first presents itself Whether we have the same statutes to consider as the court then had before it. If the statutes are identical in intention, the early case might be deemed controlling. If the Legislature has expressed a different intention, we are at liberty to disregard the rule and consider only the reasons for it. Domestic Relations Law (Cons. Laws, c. 14), § 57, provides:

‘A married woman has a right of action for an injury to her person, property or character

[159 N.E. 657]

or for an injury arising out of the marital relation, as if unmarried. She is liable for her wrongful or tortious acts; her husband is not liable for such acts unless they were done by his [246 N.Y. 573]actual coercion or instigation; and such coercion or instigation shall not be presumed, but must be proved. This section does not affect any right, cause of action or defense existing before the eighteenth day of March, eighteen hundred and ninety.’

The history of this section begins with chapter 90, Laws of 1860, which provided, inter alia, as follows:

‘And any married woman may bring and maintain an action in her own name, for damages, against any person or body corporate, for any injury to her person or character, the same as if she were sole.’ Section 7.

This section was amended by chapter 172, Laws of 1862, but not in respect to the right of a married woman to maintain an action for injuries to her person. It was repealed by Laws of 1880, c. 245, § 38, and was nonexistent when the Schultz Case was decided. Between 1880 and 1890 the only statute in force on this subject was Code of Civil Procedure, § 450, which did not give a right of action, but regulated procedure only. Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17,6 L. R. A. 553. Next comes Laws of 1890, c. 51, which reads as follows:

Ԥ 1. From and after the date of the passage of this act a married woman shall have a right of action for injuries to her property, injuries to her person or character, and injuries arising out of the marital relation in all cases in which an unmarried woman or a husband now has a right of action by law.

Ԥ 2. A husband shall not be liable in damages for his wife's wrongful or tortious acts, nor for injuries to person, property or the marital relation, caused by the acts of his wife, unless the said acts were done by actual coercion or instigation of the husband; and such coercion or instigation must be proved in the same manner as any other fact is required to be proved; but in all cases embraced in this section the wife shall be personally liable for her wrongful or tortious acts.

Ԥ 3. Nothing in this act contained shall in any way [246 N.Y. 574]affect any rights, causes of action or defenses existing at the time of the passage thereof.

‘§ 4. This act shall take effect immediately.’

This chapter is indicative of the legislative purpose to change the law in some respect as evidenced by the opening words, ‘from and after the passage of this act a married woman shall have a right of action,’ etc., and from the saving clause. The present statute (Dom. Rel. Laws, § 57) contains the same saving clause and indicates March 18, 1890, as a new starting point for judicial construction. Injuries to person and property are now grouped together in the same clause. In the act of 1860 they were covered by separate clauses. The statutory right of the wife to sue the husband for injuries to her property (with the reciprocal right of the husband to sue the wife) was recognized at an early day. Whitney v. Whitney, 3 Abb. Prac. (N. S.) 350;Berdell v. Parkhurst, 19 Hun, 358; Howland v. Howland, 20 Hun, 472. this change also might be regarded as significant of the legislative purpose to place injuries to person and property on the same footing. It follows that we have to construe, not the act of 1860, but a new statute far wider in its scope. It can no longer be said, as Earl, J., said in Coleman v. Burr, 93 N. Y. 17, 25,45 Am. Rep. 160, that ‘the statutes referred to touch a married woman in her relations to her husband only so far as they relate to her separate property and business.’ So far as that construction was the ratio decidendi of Schultz v. Schultz, supra, it has been overruled. A married woman has had, since March 18, 1890, in the language of the statute, a right of action in all cases as if single, and her husband, as such, is no longer a necessary or proper party in her tort actions. L. 1890, c. 51; Dom. Rel. Law, § 57.

We have next to consider the proper construction of the present statutes. The law says that a married woman has a right of action for an injury to her person as if unmarried. If she were not defendant's wife, [246 N.Y. 575]plaintiff could maintain an action against him for malicious prosecution. Why should the marriage relation permit the husband maliciously to prosecute his wife on a criminal charge without subjecting himself to liability for damages?

We are now confronted with the rule of stare decisis and enjoined to defer to cases already adjudicated. The law is said to be established by the express decision of this court that the action cannot be maintained. This argument, if applicable, is weighty but not conclusive. Klein v. Maravelas, 219 N. Y. 383, 114 N. E. 809, L. R. A. 1917E, 549, Ann. Cas. 1917B, 273;Oppenheim v. Kridel, 236 N. Y. 156, 140 N. E. 227, 28 A. L. R. 320. When time makes ancient rules of personal rights and remedies uncouth, illogical, and productive of harm, they need not be inexorably insisted upon. Better protection may be given to such rights in the future without destroying rights acquired in the past. Black's Law of Judicial Precedents, pp. 218-220, and cases cited. Moreover, if the reasons which led to the adoption of the rule in the Schultz Case do not apply with all their force to the present case, that rule may properly be kept within the narrowest limits and need not be extended by analogy to the present

[159 N.E. 658]

statutes. Judson v. Gray, 11 N. Y. 408. So far as such statutes may be regarded as new enactments, indicative of a change in legislative intent, stare decisis should not deter the court from examining the question anew.

We have not been backward in bringing the law into harmony with modern ideas of the marital relation. In Oppenheim v. Kridel, supra, the court dealt with another phase of the situation. Blackstone had said (3 Com. 143):

‘The inferior [the wife] hath no kind of property in the company, care or assistance of the superior [the husband] as the superior is held to have in those of the inferior.’

Therefore the wife at common law had no right against one who had alienated the husband's affections or had criminal conversation with him. Crane, J., said:

‘Whatever may have been the rights of the wife in this particular under ancient law, there is no [246 N.Y. 576]reason or law against her maintaining such an action to-day so long as the husband may do so.’

Let us then consider the cases relied on by the respondent, not as controlling...

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20 practice notes
  • Parish v. Great Atlantic & Pacific Tea Co.
    • United States
    • New York City Municipal Court
    • June 24, 1958
    ...logic and the policy of a state conflict with fiction due to historical tradition, the fiction must give way.' And in Allen v. Allen, 246 N.Y. 571, 159 N.E. 656, 660, the court said that courts are now 'to look at the substance of rights rather than blindly adhere to fictions.' The intentio......
  • Merenoff v. Merenoff
    • United States
    • United States State Supreme Court (New Jersey)
    • June 1, 1978
    ...be deemed to insure against an injury to an insured's spouse, unless expressly provided for in the policy) superseding Allen v. Allen, 246 N.Y. 571, 159 N.E. 656 (Ct.App.1927) (disallowing tort suits between spouses); Wis.Stat. § 246.075 (1951) and N.C.Gen.Stat. § 52-5 (1951) (each authoriz......
  • Courtney v. Courtney, Case Number: 27213
    • United States
    • Supreme Court of Oklahoma
    • October 25, 1938
    ...See, also, 36 Harv. L. Rev. 346; Newton v. Weber 119 Misc. 240, 196 N. Y. Stipp. 113; Power v. Lester, 23 N. Y. 527; Allen v. Allen, 246 N. Y. 571, 159 N. E. 656; 37 Yale L. Rev. 834; Schubert v. Schubert Wagon Co., supra. ¶13 The weight to be given the decisions adhering to the majority vi......
  • McKinney v. McKinney, 2217
    • United States
    • United States State Supreme Court of Wyoming
    • April 5, 1943
    ...Domestic Relation, 43 Harvard L. Rev. 1030, 1055; Bushnell v. Bushnell, 103 Conn. 583, 587, 131 A. 432, 44 A. L. R. 785; Allen v. Allen, 246 N.Y. 571, 584, 159 N.E. 656, 661; The Queen v. Jackson (1891) 1 Q. B. 671, 679, 683. Many of the cases that have considered the question of the right ......
  • Request a trial to view additional results
20 cases
  • Parish v. Great Atlantic & Pacific Tea Co.
    • United States
    • New York City Municipal Court
    • June 24, 1958
    ...logic and the policy of a state conflict with fiction due to historical tradition, the fiction must give way.' And in Allen v. Allen, 246 N.Y. 571, 159 N.E. 656, 660, the court said that courts are now 'to look at the substance of rights rather than blindly adhere to fictions.' The intentio......
  • Merenoff v. Merenoff
    • United States
    • United States State Supreme Court (New Jersey)
    • June 1, 1978
    ...be deemed to insure against an injury to an insured's spouse, unless expressly provided for in the policy) superseding Allen v. Allen, 246 N.Y. 571, 159 N.E. 656 (Ct.App.1927) (disallowing tort suits between spouses); Wis.Stat. § 246.075 (1951) and N.C.Gen.Stat. § 52-5 (1951) (each authoriz......
  • Courtney v. Courtney, Case Number: 27213
    • United States
    • Supreme Court of Oklahoma
    • October 25, 1938
    ...See, also, 36 Harv. L. Rev. 346; Newton v. Weber 119 Misc. 240, 196 N. Y. Stipp. 113; Power v. Lester, 23 N. Y. 527; Allen v. Allen, 246 N. Y. 571, 159 N. E. 656; 37 Yale L. Rev. 834; Schubert v. Schubert Wagon Co., supra. ¶13 The weight to be given the decisions adhering to the majority vi......
  • McKinney v. McKinney, 2217
    • United States
    • United States State Supreme Court of Wyoming
    • April 5, 1943
    ...Domestic Relation, 43 Harvard L. Rev. 1030, 1055; Bushnell v. Bushnell, 103 Conn. 583, 587, 131 A. 432, 44 A. L. R. 785; Allen v. Allen, 246 N.Y. 571, 584, 159 N.E. 656, 661; The Queen v. Jackson (1891) 1 Q. B. 671, 679, 683. Many of the cases that have considered the question of the right ......
  • Request a trial to view additional results

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