#### Mary A. Hook, App’lt, *v.*Delos M. Kenyon *et al.,*Resp’ts.

*(Supreme Court, General Term, Fourth Department,*

*Filed February 15, 1890.)*

1. Husband and wife — Agreement between, to take boarders and share profits is valid.

In an action upon a note given by husband and wife, for a loan to the husband, the defendants counterclaimed for board and lodging furnished plaintiff by defendants jointly. It appeared that for a part of the time the house thus occupied was one belonging to the wife and that subsequently the wife paid out of her separate estate the rent of a house leased. There was an agreement between the husband and wife that one should furnish a house or pay the rent and the other furnish provisions, both to share equally in the board realized. *Held,*that such an agreement was not improper and hence the counterclaim was valid.

2. Same—Evidence.

The evidence of a woman who had rented and occupied houses as above and who had been a housekeeper for thirty years is competent upon the question of the value of board and lodging, although she may not have first testified that she knew the value of such matters.

Appeal Rom a judgment in favor of defendants, entered in Herkimer county upon the verdict of a jury December 20, 1888, and from an order denying the plaintiff’s motion for a new trial made on the minutes of the trial judge.

*O. D. Thomas,*for app’lt; *Geo. 0. Rasbach,*for resp’ts.

Martin, J.

This action was upon a promissory note made by the defendants, who were husband and wife. It was given for money had by the defendant Delos M. Kenyon. The defendants set up as a counterclaim in this action a demand against the plaintiff for board, lodging and use of room, which were supplied and furnished to the plaintiff by the defendants jointly.

The evidence given by the defendants tended to show that the defendant Haney M. Kenyon rented or owned the house in which she and her husband resided; that while they lived in a rented house, Haney M. Kenyon paid the rent out of her own separate property; that afterwards they occupied a house which belonged to her and was a part of her separate estate; that the plaintiff applied to them for board and use of room; that the negotiations for such board and room were had by and between the plaintiff and both defendants, and that it was then and there agreed between the parties that the defendants should jointly furnish the plaintiff such board and room and receive therefor a reasonable compensation; that it was further stated and agreed that the defendant Haney M. Kenyon should furnish the use of the house and room and the defendant Delos M. Kenyon should furnish the provisions for the table and the defendants should share jointly and equally in the proceeds. The jury found the facts as claimed by the defendants.

*890One of the questions presented on this appeal is whether the plaintiff was indebted to the defendants jointly for such board and room, so that plaintiff’s indebtedness would constitute a proper counterclaim in this action. The plaintiff contends that the agreement between the defendants to jointly furnish her with board and room, and to share equally" in the proceeds, was invalid because between husband and wife, and that the indebtedness set up in the defendants’ answer was to the husband alone, and not a proper counterclaim to the note on which this action was brought.

It must be admitted that the services of a wife while in the discharge of her domestic duties still belongs to "the husband. *Brooks*v. Schwerin, 54 N. Y., 348. It has also been held that where boarders are taken by the husband, and his wife takes charge of his establishment, and thus aids him in carrying on his business, in the absence of special proof, her services and earnings belong to her husband. But even under such circumstances the husband might covenant and agree that his wife should receive pay for her services on her own account. *Reynolds*v. Robinson, 64 N. Y., 593. “A married woman owes no duty to her husband * * * to carry on any business in his house or elsewhere for the purpose of earning money for him.” *Coleman*v. Burr, 93 N. Y., 30. “When she labors for another, her service no longer belongs to her husband, and whatever she earns in such service belongs to her as if she were a *feme*sole.” *Brooks*v. Schwerin, *supra;*see *Matter of Kinmer,*14 N. Y. State Rep., 618. The use of her separate property belonged to the wife.

Thus it is seen that a husband and wife have power to agree that the wife-shall receive pay for her services in a case like this. In this case the wife was also the lessee or owner of the house in which the plaintiff had a room and was boarded, and therefore not only performed services in furnishing board to the plaintiff, but also contributed the use of her separate property. That under such circumstances she was justly and equitably entitled to share in the money to be received for such board and use of her house there can be little doubt.

But it is said that 'as the defendants were husband and wife they were incapable of making a contract between themselves to divide the amount received for such board and use of room, as such a contract made them partners and was invalid. We do not deem it necessary to a determination of this case that we decide the question whether the relation of partners may exist between husband and wife. We think under the circumstances disclosed the defendants had a right and could legally make a contract by which the wife should receive a share of the proceeds of such board and use of room, for the use of her house and for her services, and that such contract having been made, and the plaintiff having promised to pay the defendants jointly for such board and use of room, with full knowledge of the agreement between the defendants, she cannot now insist that her debt was to the husband alone, and thus defeat the defendants’ counterclaim.

On the trial the witness, Yancy M Kenyon, was asked the following question: “ How much was the board and occupation of *891the room worth during the time plaintiff was there ? Objected to as incompetent, immaterial and improper. That it cannot be offset under the answer. Witness not shown qualified to speak.” These objections were overruled, and the plaintiff excepted. The witness answered, “It was worth four dollars.” It is now claimed that this was error, because the witness was not shown competent. The evidence discloses that the witness had been a house keeper for thirty years ; that she performed the services necessary in furnishing such board; and that she herself rented the house where they lived when the plaintiff commenced boarding with them, and afterwards owned the house in which she boarded. We think the witness was competent and the exception was not well taken. *Mercer*v. *Vose,*67 N. Y., 58.

We have examined the other exceptions in the case without finding any that would justify us in disturbing the judgment herein, or that would seem to require special discussion.

Judgment and order affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.