#### Queens Co. Bank *v.*Leavitt.

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

May 12, 1890.)

Husband and Wife—Contracts—Accommodation Papee.

Notes executed by a wife to her husband for his accommodation are not contracts between them; and under Laws N. Y. 1S84, c. 381, giving to married women the power to contract as if they were unmarried, and making them and their separate estate liable on their contracts, whether they relate to such separate estate or not, but excepting from the provisions of the act all contracts between husband and wife, a bank taking such notes in payment of an indebtedness of the husband is entitled to recover thereon against the wife. Following *Bank*v. *Sniff en,*7 N. Y. Supp. 520.

Appeal from circuit court, Queens county.

Action by Queens County Bank against Eliza M. Leavitt on a promissory note for $2,800, made November 5,1888, by defendant to order of her husband, Rufus W. Leavitt, and indorsed by him to plaintiff. There was a judgment for plaintiff. Defendant appeals. Laws N. T. 1884, c. 381, provides: “Section 1. A married woman may contract to the same extent, with the 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.” Section 2 provides that “this act shall not affect nor apply to any contract that shall be made between husband and wife. ”

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

*C. A. 8. Van Nostrand,*for appellant. *Rice & Bijur, (Nathan Bijur,*of counsel,) for respondent.

Dykman, J.

This action was brought upon a promissory note, of which the following is a copy: “$2,800. Flushing, November 5, 1888. Four months after date I promise to pay, to the order of Rufus W. Leavitt, twenty-eight hundred dollars, at the Queens County Bánk, Long Island City, value received. In consideration of one dollar to me in hand paid, I hereby bind my separate estate for payment of the above amount. Eliza M. Leavitt. ” At the time of the execution of this note, the maker was a married woman, the wife of the payee, Rufus W. Leavitt, and the note was made without *194consideration as between the husband and wife, and was made for the accommodation of the husband, and he indorsed the same and delivered it to the Queens County Bank for the purpose of taking up another note which the bank held against him, which was also made by his wife. Upon the conclusion of the testimony at the trial, the court directed a verdict for the plaintiff, and the defendant has appealed from the judgment entered thereon. We can discover no error. The note in suit was made with full knowledge of the use to which it was to be appropriated, and there is no claim interposed of any diversion of the paper. The note was made by the wife for the accommodation of her husband, and the existence of the debt from the husband to the bank was a sufficient consideration between them to sustain the transfer of the note to the bank. *Schepp*v. *Carpenter,*51 N. Y. 602. Being an accommodation note, it did not inure as a contract between them, because it had no inception until it was discounted or taken by the bank in place of the old note. *Bank*v. *Sniffen,*7 N. Y. Supp. 520, (December 19, 1889.) There never was any intention to create an obligation of the wife to the husband by the execution of the note in question, and the paper had no inception as a contract until the delivery of the same to the bank in payment of the old note. These remarks are made to show that chapter 381 of the Laws of 1884, respecting the capacity of married women to make contracts, and the reservation and proviso contained in the second section of that act can have no application to this action. It was the evident intention of the defendant to become surety for her husband, and she had capacity and-competency to enter into such obligations previous to the law of 1884, and her obligation thus assumed is valid and binding. *Insurance Co.*v. Babcock, 42 N. Y. 613. We find no exceptions well taken, and no error. The judgment should be affirmed, with costs. All concur.