The embarrassment, which seems to attend the disposition of this case, arises from the repeal by Laws of 1880, chapter 245, section 1, subdivisions 36, 38 of the amendatory section 3, chapter 172, Laws of 1862, and the amended section 7, chapter 90, Laws of 1860, which provided that a married woman might maintain an action in her own name to recover damages for injuries to her person or character, and that the proceeds of the recovery should be her property. The remaining statutes, which enable her to prosecute an action in her own name alone also, provide that it shall be neither necessary or proper to join her husband as a party with her in any action affecting her separate property. (Code, § 450.) This action is founded upon the disregard of the duties of the marital relation by the husband of the plaintiff, induced by the defendant, to the prejudice of the plaintiff. Marriage is a civil contract. (2 R.S. 138, § 1; Clayton v.Wardell, 4 N.Y. 230.) From such contract spring reciprocal duties of the parties to it, amongst which are those assumed by the husband, of her maintenance and his consortium, and thus to contribute to her comfort and enjoyment. To these means of her happiness, so far as practicable, she is entitled. As appeared by the verdict of the jury, the plaintiff's husband was induced by the defendant to essentially refuse to perform his marital undertaking or to regard her rights in that respect. And the damages arising from the denial to the plaintiffs of such rights result from a breach by the husband, so induced, of the contractual relation of marriage. But such *Page 598 contract is sui generis, and differs from all other contracts in so far that the nature of a recovery of damages in an action, founded upon its breach, is as in tort, and the action is deemed as for a personal injury, and, consequently, does not survive the party injured. (Thorn v. Knapp, 42 N.Y. 474; Wade v.Kalbfleisch, 58 id. 282.) And while a right of action for a personal injury may not be within the definition, as frequently given, of a chose in action, that term in its broadest sense does embrace it. (People v. Tioga C.P., 19 Wend. 73, 74; Berger v. Jacobs, 21 Mich. 215; C.B. Q.R.R. Co. v. Dunn, 52 Ill. 260; 4 Am. R. 606; 3 Am. and Eng. Encyl. of Law, tit. Chose in Action.)
I concur in the result of the opinion of Judge VANN, and in his view that a cause of action arises against a party who effectually and wrongfully entices a husband to abandon his wife, and that at common law its availability to her was denied by reason of the disability of the wife to seek redress by action or take the benefit of it. The cause involves the misconduct of the husband, and there is no propriety in permitting him to join with his wife in prosecuting an action for such cause and to realize a pecuniary benefit as the result of his own wrong. The cause of action is the wrongful deprivation of the plaintiff of that to which she is entitled by virtue of the marital relation. It arises from the denial to her of that which the marriage contract gave her, and which she unmolested, had the right to have and enjoy. The conjugal society of the parties to it is an essential requirement of such a contract and relation. And when that due from the husband is wrongfully taken from her, the consequences are her loss and hers alone. The plaintiff's right to the chose in action, springing from the defendant's act, which produced such loss to her, was derived from the marriage contract. It belonged to her, was her property. And since she is permitted, by statute, to have and assert proprietary rights, independently of her husband, and as provided by the section of the Code before mentioned, to alone and for her benefit prosecute actions *Page 599 there seems to be nothing in the way of the plaintiff's right to maintain this action.
The judgment should be affirmed.
All concur except HAIGHT and PARKER, JJ., dissenting, and FOLLETT, Ch. J., not sitting.
Judgment affirmed.