Coster v. Coster

• Decision Date: 14 January 1943
• Citation: 46 N.E.2d 509,289 N.Y. 438
• Parties: COSTER v. COSTER.
• Court: New York Court of Appeals Court of Appeals

289 N.Y. 438

46 N.E.2d 509

COSTER

v.COSTER.

Court of Appeals of New York.

Jan. 14, 1943.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Pauline C. Dansey against O. Delancey Coster and another for personal injuries. Subsequent to the commencement of the action, the action was discontinued as to the defendant Ezon and plaintiff married defendant Coster, thereby becoming Pauline C. Coster. The First Department of the Appellate Division of the Supreme Court, 262 App.Div. 995, 30 N.Y.S.2d 816, unanimously affirmed a judgment of the Supreme Court of New York County, Hofstadter, J., dismissing the complaint on the merits, and denied leave to appeal to the Court of Appeals, 263 App.Div. 708, 31 N.Y.S.2d 665, and plaintiff apeals by permission of the Court of Appeals.

Judgment affirmed without prejudice. Watson Washburn and Royal E. Mygatt, both of New York City, for appellant.

Everett W. Bovard and Henry L. Ughetta, both of New York City, for respondent.

RIPPEY, Judge.

On September 13, 1938, Pauline C. Dansey, a resident of the State of New York, while riding as a guest in an automobile owned and operated by defendant Coster on a public highway in Massachusetts, received personal injuries arising out of a collision between Coster's car and that of one Ezon. She commenced this action against Coster and Ezon on January 16, 1939, in the Supreme Court of New York County, State of New York, to recover damages for their negligence in causing her injuries. Defendant Coster appeared and answered on February 4, 1939. On July 12, 1939, plaintiff married the defendant Coster in the city of New York and has since such marriage, as before, been a resident of the State of New York.

Pursuant to leave granted by the Special Term, defendant served a supplemental and amended answer on October 9, 1939, in which he pleaded, among other things, as a separate and distinct defense, the marriage between him and plaintiff, that plaintiff's capacity to maintain the suit depended upon the common and statute law of Massachusetts, that the laws of that Commonwealth barred suits between husband and wife, and that her marriage to him subsequent to the happening of the accident and the commencement of suit extinguished her right to maintain the action against him. Plaintiff contends that, though the questions of the defendant's liability for negligence and her freedom from contributory negligence depend upon the law of Massachusetts, the State in which the accident happened, her capacity to sue depends upon the law of New York, the State of her residence.

Plaintiff's action againt Ezon was discontinued. Upon the trial of the action against Coster no evidence was introduced on the subject of defendant's negligence as the sole proximate cause of the accident, upon plaintiff's freedom from contributory negligence or upon the subject of damages. At the opening of the trial it was stipulated in accordance with defendant's supplemental answer that, at the time of the accident and at the time of the trial, (1) Chapter 209, section 6, of the General Laws of the Commonwealth of Massachusetts (Ter.Ed.) provided that ‘a married woman may sue and be sued in the same manner as if she wese sole; but this section shall not authorize suits between husband and wife,’ (2) the law of Massachusetts on the issues submitted was laid down in the Supreme Judicial Court of Massachusetts in Lubowitz v. Taines, 293 Mass. 39, 198 N.E. 320, and Johnson v. Johnson, 303 Mass. 204, 21 N.E.2d 224, (3) the defendant was protected by a liability insurance policy, issued under and governed by the laws of the State of New York but containing no express provision as is referred to in subdivision 3-a of section 109 of the Insurance Law, Consol. Laws, c. 28 (now s 167, subdivision 3), which by its terms covered the accident, and (4) that the court might ‘make a definitive decision’ at that time rather than at the close of the case. The Special Term and the Appellate Division had previously refused to strike from the supplemental and amended answer the defense to which reference is made above and had stricken out plaintiff's reply in which she set up defendant's insurance coverage. In that state of the record, the trial court held that ‘whatever the proof might be as to the questions of negligence, contributory negligence and damages * * * the defendant's plea of the marriage of the plaintiff to the defendant Coster, though subsequent to the time of the accident, precludes a recovery by the plaintiff against the defendant Coster in the courts of our State, in view of the law of the State of Massachusetts; and such decision of the Appellate Division likewise would seem to preclude the tenability of the contention by the plaintiff that the existence of insurance would constitute an exception to the law of Massachusetts barring a recovery by a wife against the husband for a tort,’ and dismissed the complaint.

Under the laws of Massachusetts, the plaintiff was competent to sue Coster to recover damages for personal injuries due to his negligence since she was not his wife at the time of the occurrence of the accident and at the time of bringing suit, but her subsequent marriage to Coster extinguished her right to maintain the action. Mass.General Laws...