The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-04-20
Superior COurt-Spccial Term.
Before Hon. Judge Hoffman.


NEXT FRIEND.
April 19.-Cyntha Smith, by El,card Smith, her merit
This suit is brought TO certain property seized
by the defendant Stanes upon execution issued on
judgment in favor Of Kearney, the other defendant
against Edward Smith, the next friend in the complaint
The plaintiff Cynthia, his wife, claims the property !;
and having taken upon claim and delivery the under
now objected that the husband cannot be next friend
that order appointing him such has been
tered, and that he wholly irresponsible. Some
tainy prevails TO the practice this subject and in
the late case of Rusher and her husband against -,
(Supreme Court, April TO- 1884, Justice Roosevelt
tanned bill Of foreclosure brought by husband and wife,
OF bond and mortgage given to the wife, with the
bond since the of 1913 therefore her sole and sepa
rate property The learned Judge in order to protect the
wife adopted applicable rule the practice OF OBJ
tanning her written consent upon private examination,
to disposition of the fund to her husband, or any
other person. otherwise to be paid to herself. The
learned Judge refers to the practice formerly in
ChaAcery of taking such an examination before
friends Of married woman were taken out of court
TIE practice of the Court Of Chancery this point was
not fully settled far reported proved it, until
period Lord Hardwicke stated the general rule to be
that bill by husband and wife bill of the husband
and the suit under his CONTROL that where related
to the separate property of the wife, it ought to be
brought BY her proeaei" amy However, there have ~.
Court has taken of the wife and ordered payment
to some person for her. Griffith Hood, YES. Sen
550 II may however be stated that the fixed rule OF
the Court Of Chancery in England and in this State has
for many years been that where the separate estate of
the wife is concerned the suit must be by next friend
there is joint interest with the husband, he must be
party the suit would be defective He is therefore,
allowed to with her the Court in the result taking
of her interest in tho first fund But If the estate
equaby her own, and solely her own next friend
other than the husband essential. (Reeves
pulby Sand St. AGA; Legett vs. Phelps, smons 2s9;
Beavan Co. Wake Taylor, Keen SO; Bowrn vs. Smith,
10 Paige 20; Aston Jones, Barb G. r. 397 Grant
Van Schoonoyen, Paige 257 sherman vs. Buckeims,
Barbour 414 Hugh Evans, Sand S. 1857 point to
the distinction between suit for joint interest
and one for separate estate Of the wife. 1t should
10 tirpl n ia
husband, of necessity she must by next friend
The exception in divorce was by statute Cort
this character since the CODE Now, the very idea of
separate estate is estate held by the wife in oppos
ton to a marital right. Therefore, her position is
antagonsc to his as to such property whatever may be
the actual union Of views and acts between them At
any rate point entirely settled before the
code The 1l4h section originally passed. gave rise to
several questions and in 1851 amendment adopt
ed presumptivey to remove them. 1t is provided
that when q married woman is a party, her husband
must be joined with her. except that where the action
here separate property she may aone and
that when the action between herself and her husband
she may or be sued alone. But where the husband
cannot be joined with her, herein provided she shall
prosecute defend by her next friend 1t must be OBJ
served that the last clause is unmeanng unless the Words
may sue alone' in the above preceding clauses mean
simply she is to sue without her husband. Under the
grammatical construction of these clauses there is
case provided where the husband cannot be Joined with
the wife, The phraseocgy is simply permissve to sue
alone, not prohbitory Of uniting with the husband
There then sensible construction the whole to be
found except in reading the provision thus-When a
married party, the husband must be joined
in the action except that if the action her
parate property the husband cannot be joined with her.
but she must by next friend And when the action
is between herself and her husband she shall prosecute
defend by her next friend. My conclusion is that
upon clear authority before the code, and upon true
Interpretation OF the CODE complaint which relates to
the separate property OF the wife cannot be filed by her
and her husband plaintiffs that she must by her
next friend and that her husband cannot be such This
result renders unnecessary to pass upon the other
questions The order will be that the plaintiff Cynthia
Smith, have liberty to amend her complaint, within ten
days by striking out the Of Edward Smith as her
next friend, by adding the OF other person
SUCH after being duly appointed by order of the Court
with liberty, if advised to make the husband party
plaintiff defendant The plaintiffs to pay $40 costs
such amendment not to be allowed. In case amend
ment is made within the time limited, order OBJ
tanned extending such time the ten dollars
not paid, the complaint to be dismissed with costs.