Holcomb v. Harris

• Decision Date: 12 March 1901
• Parties: HOLCOMB v. HARRIS.
• Court: New York Court of Appeals Court of Appeals

166 N.Y. 257

59 N.E. 820

HOLCOMB

v.HARRIS.

Court of Appeals of New York.

March 12, 1901.

Appeal from supreme court, appellate division, Third department.

Action by Andrew J. Holcomb against Charles W. Harris, executor of Edmund S. Harris, deceased. From a decision affirming a judgment in favor of the plaintiff and an order denying a motion for a new trial (59 N. Y. Supp. 160), defendant appeals. Reversed.

G. B. Wellington, for appellant.

James Lansing, for respondent.

BARTLETT, J.

This action was brought to recover for services rendered by the plaintiff's wife and doughter to the testator, and for damages arising from the breach of the contract of employment. The jury rendered a verdict for $2,000 in favor of plaintiff, and the appellate division, with a divided court, affirmed the judgment entered thereon. The testator, a resident of Troy, died in April, 1897. His only relative was Charles W. Harris, a nephew, the executor of his will, and the defendant in this action. The families of plaintiff and the testator were intimate, and exchanged visits. The plaintiff, in 1887, resided in one of the towns of Rensselaer county, and was a wagon maker and carpenter by trade. The testator and his wife called on the plaintiff and his family in the summer of 1887, and during the visit Mrs. Harris asked the plaintiff and his wife, if she died first, would they come to Troy, and take care of her husband, and they promised to do so. The testator then stated that they had everything fixed, and that plaintiff and wife would never want for anythingwhile they lived, and would be well recompensed in the end. On the 4th of December, 1888, Mrs. Holcomb received a telegram that testator's wife was very ill, and she went to her at once. Mrs. Harris died later that day. After the funeral, the testator asked the plaintiff and his wife if they were going to keep their agreement, and, on receiving an affirmative reply, said that he desired them to sell everything that they had, as he possessed enough of everything, and that it all belonged to the plaintiff and his wife. He requested them to come to him at once, bringing their young daughter. This arrangement was carried out for four years and a half, when the testator, while expressing no dissatisfaction with the plaintiff and family, stated that he had made up his mind to let them go, as his nephew, Charles W. Harris, the defendant, was poor, and he could help him better by giving him and his wife a home than in any other way. This was in May, 1893. It was upon the unwritten contract growing out of these facts that this action was brought. The facts were properly submitted to the jury, and attention is called to them only for the purpose of understanding the situation out of which the questions of law arise.

The counsel for the defendant and appellant raises the preliminary point that the cause of action, if any exists, is vested in the plaintiff's wife. Our attention is called to the fact that this defense is not pleaded, and therefore cannot be raised on this appeal. Assuming that the question is here, we are of opinion that the plaintiff was entitled to recover for the services of his wife under the facts the jury were justified in finding. The counsel for the appellant contends that the rights of married women have been so enlarged by the act of 1884 (chapter 381) that in the case at bar it is quite immaterial that the contract with testator for the services of plaintiff's wife was made by the plaintiff, and that ‘the earnings therefrom, by force of the statute, belong to her, even though it did not appear that she ever made any election to labor with reference to her separate estate.’ The act of 1884 is entitled ‘An act in relation to the rights and liabilities of married women.’ Section 1 reads as follows: ‘A married woman may contract to the same extent, with like effect and in the same form as if unmarried, and she and her separate estate shall be liable thereon, whether such contract relates to her separate business or estate or otherwise, and in no case shall a charge upon her separate estate be necessary.’ The act of 1860 (chapter 90) conferred upon a married woman the right to create a separate estate by carrying on any trade or business and performing any labor or services on her sole and separate account. In construing this act the courts held that the contracts of a married woman, to be valid, must relate to, or be for the benefit of, her separate estate, or the payment thereof must be...