Thayer agt. Holland.

committed in the course of his employment and for the benefit of his principal, and this is so, although no express command or priority is proven. (Fishkill Savings Institution agt. The National Bank of Fishkill, 80 N. Y., 162.) And an act which is adopted as a means of accomplishing the object of his agency, cannot well be extrinsic to the agent's employment. It is only, therefore, when after having issued execution, the attorney undertakes to give special directions for its enforcement in a manner not warranted by the language of the writ or for which the officer executing the writ may justly decline to take the responsibility in the absence of indemnity, as in Averill agt. Williams et al. (4 Denio, 295), and Welsh et al. agt. Cockburn, et al. (63 N. Y., 181), that the client can only be held upon poof of special authority to the agent, express or implied, or of subsequent ratification with knowledge of the facts.

In the case at bar no facts were developed sufficient to take the case out of the general rule, and the judgment and order should therefore be reversed and a new trial ordered, with costs to the appellant to abide the event. SEDGWICK, C. J. and RUSSELL, J., concurs.

N. Y. COMMON PLEAS.

WILLIAM C. THAYER agt. CHARLES HOLLAND.

Costs Counter-claim-Dismissal of complaint - Prevailing party - Who is entitled to costs.

Where, in an action in which a counter-claim was interposed, the complaint was dismissed, and no recovery was had upon the counter-claim, the plaintiff should not be awarded costs upon the dismissal of the counter-claim and have such costs offset against the costs that follow the dismissal of the complaint; the final judgment, and not the result of the contest over some of the questions in controversy determining the right to costs.

Special Term, May, 1882.

Thayer agt. Holland.

Abbott Brothers, for plaintiff.

Kelly & McRae, for defendant.

VAN HOESEN, J.-The complaint was dismissed, and the defendant is the prevailing party as to the cause of action. which constituted plaintiff's claim. The right of defendant to recover costs follows as a matter of course. The plaintiff insists, however, that he is entitled to costs against defendant, inasmuch, as no recovery was had upon the counter-claim, and that the costs that follow the dismissal of the complaint should be offset against the costs that ought, as he contends, to be awarded to him upon the dismissal of the counter-claim. The counter-claim was withdrawn, not dismissed; but even if there had been a dismissal the plaintiff would have no right to costs. There is one case, and only one (Kalt agt. Liquot, 3 Abb., 190), that gives color to the plaintiff's pretension, but long ago the court of common pleas in Crane agt. Holcomb (2 Hilton, 271), refused to follow it. In Kalt agt. Liquot, which was an action ex contractu, the plaintiff established his claim in part, and the defendant established his counter-claim in part, so that the plaintiff's damages were less than fifty dollars, but nevertheless the court refused to give the defendant the costs of the action, and held that as the plaintiff was entitled to costs as the prevailing party upon his claim, and the defendant to costs as the prevailing party upon his counter-claim, it was equitable that the defendant's costs should be set off against the plaintiff's. As was said in Krane agt. Holcomb, no warrant for this practice can be found in the Code. Costs go to the plaintiff when he recovers judgment upon the cause of action set up in his complaint. Then he is the prevailing party. If an offset, equal to or greater than the amount of his claim is established, he is not the prevailing party, though he conclusively prove his entire cause of action. The defendant prevails when he defeats the plaintiff's claim, whether by establishing a counter-claim larger than the plaintiff's claim, or by disproving the plaintiff's

Schultz agt. Schultz.

demand. Costs follows the judgment. The party in whose favor judgment is to be entered is the prevailing party, and is - except in actions cognizable by a justice of the peaceentitled to the costs. If the plaintiff fails to make out his case, the defendant is entitled to judgment. It matters not that the defendant has failed to establish the counter-claim that he has set up - he is still entitled to judgment and to costs if the plaintiff does not get a judgment. If Kalt agt. Liquot were the law, it would be necessary to set off the costs in every case in which the defendant proved a counterclaim, though the plaintiff should prevail in the action and recover judgment for hundreds of thousands of dollars. Such a construction of the Code would be a surprise to the profession. The common sense of the bar recognizes the fact that the prevailing party is he in whose favor the final judgment goes. The final judgment, not the result of the contest over some of the questions in the controversy, determines the right to costs.

The case was difficult and extraordinary, and the defendant should have an allowance of $150.

SUPREME COURT.

THERESE SCHULTZ agt. THEODORE SCHULTZ.

Husband and wife-Wife may maintain action against her husband for an assault and battery-Laws of 1860, chapter 90; Laws of 1862, chapter 346; Code of Civil Procedure, section 549.

Under the acts of 1860 and 1862, in relation to married women (Laws of 1860, chap. 90; Laws of 1862, chap. 346), a wife may bring an action against her husband for damages for assault and battery, and in such action the husband may be arrested and held to bail (DAVIS P. J., dissenting).

First Department, General Term, April, 1882.

Before DAVIS, P. J., BRADY and DANIELS, JJ.

BRADY, J.-This is an action for assault and battery; the parties are husband and wife. There is no doubt that the papers presented upon the motion contain a sufficient statement of the cause of action, and the question is, therefore, whether the defendant, being the husband of the plaintiff, can be arrested and held to bail in such an action as this.

The Code (sec. 549, subdiv. 2), authorizes the commencement of an action to recover damages for a personal injury, and the granting of an order of arrest therein generally, containing no provision as to the suitor who asks for the remedy. It presents nothing, therefore, upon the question suggested. There is nothing, either, contained in the acts of 1848 and 1849 in relation to married women (see laws of those years), bearing upon the subject here to be discussed.

In 1860, however, an act was passed by the legislature (see laws of that year, p. 159), which seems to be an independent act, having no relation whatever to the acts of 1848 and 1849. It was provided by section 7, as follows: "And any married woman may bring and maintain an action in her own name for damages against any person or body corporate for any injury to her person or character, the same as if she were sole." That section was amended by an act passed in 1862 (see laws of that year, chap. 346), but not in respect to the provision relating to her right to bring an action, as provided by the act of 1860.

These acts in express terms, therefore, conferred the right and they were acts that treated of the property and rights of a married woman as if feme sole and unmarried, to maintain an action against any person for any injury to her person or character. And it was declared in both acts that the money received upon the settlement of any such action should be her sole and separate property. There are some adjudications which are supposed to have interpreted the intention of the legislature, in regard to and the effect of the provision referred to in the statutes of 1860 and 1862, which are not in harmony.

In the case of Freethy agt. Freethy (reported in 42 Barb.,

Schultz agt. Schultz.

641), it was decided that a wife could not maintain an action against her husband to recover damages for slander uttered by him, and it was declared that the legislature did not intend by the laws of 1862 to which reference has been made, to change the common-law rule as to the disability of husband and wife to sue each other at law. It was admitted in that case that the words "any person " in the acts of 1860 and and 1862 were very comprehensive, and might, in a proper case, be held to include a husband, but it was said that the question was, "whether in view of all that the act contains, and of all the surrounding circumstances, we can infer that the legislature intended that a wife might bring such an action, and further, if the words necessarily included the husband, we should not be at liberty to say that they were inoperative." But the court said, "as they do not it is our duty to ascertain, if we can, whether the legislature meant to include suits against him."

This is a very well considered case, but it is supposed that devotion to the rigorous rule of the common law governing the relation of husband and wife controlled the learned justice, and influenced his decision. He is not the only learned writer who has yielded to the influence of that same emotion, and thus circumscribed the objects and purposes of the acts of 1848, 1849, 1860 and 1862.

In the case of Logendyke agt. Logendyke (reported in 44 Barb., 366), it was held that a married woman could not sue her husband in an action for assault and battery. The learned justice delivering the opinion in that case commenced by saying that it was conceded by counsel that by the rules of the common law husband and wife could not sue each other in a civil action, and that the question presented was whether that right had been conferred by the statutes of 1860 and 1862, to which reference has been made. It was said also, in that case, that the right to sue the husband in an action for assault and battery might, perhaps, be covered under the literal language of the section, but the learned justice said