(concurring.) I concur in the opinion of Mr. Justice Beldock, but deem it appropriate to make some further comment concerning the views which prevailed in the County Court, and which are urged by respondent on this appeal.
It was there stated, on the dismissal of the indictment by which respondent was accused of stealing his wife’s property, that New York is a common-law State, and that it was the rule of the common law that neither spouse could commit the crime of larceny with respect to the other’s property, because in the eyes of the common law, husband and wife were but one person. It was also stated that the Legislature of this State has not seen fit to abrogate directly the common-law rule by amendment of the larceny provisions of our Penal Law, and that the courts cannot create new criminal laws by judicial fiat. It was determined, therefore, that the common-law rule still forms part of the law of this State. The premises are correct. We disagree only with the conclusion.
We are mindful, as was the learned County Judge, that statutes changing the common law must be strictly construed and *419the common law must be held no further abrogated than the clear import of the language used in the statutes expressly requires (Matter of Ryan, 291 N. Y. 376, 400) and that the common-law incidents of marriage are swept away only by express enactments (Bertles v. Nunan, 92 N. Y. 152; Allen v. Allen, 246 N. Y. 571, 579, supra). Concededly, the rule which respondent has successfully invoked formed part of the common law of the colony of Yew York, which has been continued as the law of this State, “ subject to such alterations as the legislature shall make ” (Y. Y. Const., art 1, § 14). We see no necessity, however, for further legislative action to effect its abrogation.
The genius of the common law lay in its flexibility and its adaptability to the changing nature of human affairs. (Rozell v. Rozell, 281 N. Y. 106,112; Oppenheim v. Kridel, 236 N. Y. 156.) Its flexibility consisted not in the change of its essential principles, but in the application of old principles to new cases and in the modification of the rules flowing from them. (Rensselaer Glass Factory v. Reid, 5 Cow. 587, 628.) The rules of the common law were the result of the application of general principles to particular facts. The principle was essentially the same under all circumstances, but the rule, or the result of its application, varied with the facts to which it was applied and the conditions under which the application was made. Since its rules were founded in reason, one of the oldest maxims of the common law was that where the reason for the rule ceased, the rule also ceased. (People v. Randolph, 2 Parker Cr. Rep. 174, supra; Funk v. United States, 290 U. S. 371, supra.)
Except where vested rights were involved (cf. Bertles v. Nunan, supra), the common law as continued by our Constitution, lost none of its flexibility or its adaptability to changing conditions (Town of Brookhaven v. Smith, 188 N. Y. 74; Oppenheim v. Kridel, supra; Rozell v. Rozell, supra; Woods v. Lancet, 303 N. Y. 349), and the maxim heretofore referred to became as much a part of our law as the rule which we are now considering. (Cf. People v. Randolph, supra, and Bertles v. Nunan, supra.) That rule, which prevented the prosecution of a husband for the larceny of his wife’s property was the natural result of the application by the courts of the ancient common-law principle that husband and wife were one person to the definition of the crime of larceny, which involved a taking by one person of the property of another. Almost twenty-seven years ago, Judge Potjíto, in discussing the extent to which the principle had then survived, said (Allen v. Allen, 246 N. Y. 571, 572, supra):
*420“The law of the rights of married women has been evolved from the ‘ archaic period of our race ’ (Earl, J., in Bertles v. Nunan, 92 N. Y. 152, 156), when husband and wife were regarded in law as one person, to its present status where the recognition of the wife’s separate person and property is practically complete. The Married Women’s Acts are held to have no relation to or effect upon real estate conveyed to husband and wife jointly and they take, as at common law, as tenants by the entirety. (Bertles v. Nunan, supra.) This is a rule of property rights which stands until the Legislature changes it. It is also assumed to be the law of New York, as held in 1882 in Schultz v. Schultz (89 N. Y. 644) that a husband may libel or slander his wife, prosecute her without probable cause on criminal charges, assault her or falsely imprison her without subjecting himself to liability to her for damages, not because he is within his legal rights in thus injuring her, but because the Legislature has failed specifically to include the husband in the general grant to her of the right to sue for injuries to her person. With these exceptions, the fiction is well nigh as archaic as its origin ”.
As has been noted by Mr. Justice Beldock, those exceptions no longer exist. It is unnecessary to determine whether any vestige of the ancient principle remains. It is sufficient that it has been swept away by express enactment to such extent that if any vestige remains it no longer supports the conclusion that a husband cannot steal his wife’s property. We see no reason why the rule under consideration should survive the reasons for its existence. If respondent misappropriated his wife’s property, he has no moral or other right to assert that he acted in good faith on an .assumption that the rule would be continued in force for his protection. The reasons for its existence having been removed by the Legislature, the rule has ceased to exist. (Funk v. United States, 290 U. S. 371, supra; Beardsley v. City of Hartford, 50 Conn. 529; State ex rel. Johnson v. Tautges, Rerat & Welch, 146 Neb. 439.)
The statement of this conclusion does not create a new criminal law by judicial fiat. Our statutory definition of larceny (Penal Law, § 1290), of which the rule formed no part, remains unchanged by our determination. Neither does it involve the arrogation of a legislative prerogative. Direct legislative action would be appropriate, but is not required. The power to adapt, or to abrogate obsolete rules, which in their origin were of judicial creation, is one which the courts have always possessed *421(cf. People v. Randolph, supra; Town of Brookhaven v. Smith, supra; Oppenheim v. Kridel, supra; Rozell v. Rozell, supra; Beardsley v. of Hartford, supra; State ex rel. Johnson v. Tautges, Rerat & Welch, supra, and Schwanke v. Garlt, 219 Wisc. 367), and which they have not only the right, but the duty to exercise when justice demands it (Woods v. Lancet, 303 N. Y. 349, supra).
Adel, Wenzel and Schmidt, JJ., concur with Beldock, J.; Nolan, P. J., concurs in separate opinion, in which Adel, Wenzel and Schmidt, JJ., concur.
Order of the County Court of Kings County modified by striking out the second and third ordering paragraphs and by substituting therefor a provision that the motion to dismiss the indictment be denied, and as so modified order affirmed.