[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 152 I do not concur in the doctrine substantially announced by the learned judge at circuit, that where the husband and wife are domiciled upon premises, the separate and exclusive property of the wife, that the husband is in legal presumption so in control of the premises as to make him responsible to a party, who enters thereon by permission of his wife, for injuries sustained by the careless leaving a pit thereon to remain uncovered. In such a case the wife alone would be responsible. (Rowe v. Smith,45 N Y, 230, 233.) To make the husband jointly or separately responsible, some evidence should be given of his participation in the wrong; or his obligation to have obviated the cause which produced the injury; all of which was clearly established in this case. The pleadings do not put in issue the ownership of the house and premises occupied by the defendant and his wife. The *Page 154 allegation in the complaint is that the defendant was the keeper of a public boarding-house in the village of Yonkers. The answer denies that he was a keeper of a public boarding-house in that village. The complaint and answer may each have been true, and yet the defendant may have been the owner of the house and premises upon which he with his wife resided; and the answer may have been true, and yet the defendant may have been the keeper of a private boarding-house under the charge and superintendence of his wife. It was not shown that Coe and wife, who in 1857 executed a deed of conveyance to the defendant's wife, were, or either of them, ever seized or possessed of the premises, or that the defendant's wife ever entered into possession thereof, claiming to hold under that deed. But concede that the deed vested in her at its date a separate title in fee, it is by no means inconsistent with one of the defences set up by the defendants in 1864, viz.: that at the time of the alleged injuries, in 1863, the plaintiff had entered and was unlawfully on a part of his premises on which no right of way had been given her, thus, by necessary implication, admitting that the premises were his at the time of the injuries complained of. He knew best to whom the premises belonged, and the jury had no right to find against his admission upon the record.
The remaining questions, as to the right of the plaintiff, under the circumstances, to be upon that part of the premises where the injury occurred; the negligence of the defendant in permitting the cistern to remain uncovered, and whether the plaintiff, without fault on her part, fell into it, and the consequences, were each questions, which, under the evidence, should have been and were properly submitted to the jury, and hence the judgment should be affirmed.
All concur.
Judgment affirmed. *Page 155