By the Court,
Johnson, J.This action cannot be maintained unless it can be shown that the indebtedness .for the services was to the plaintiff in her own-right, and not to her husband. It is not a question as to whether the plaintiff is a proper party to the action merely, but the real question is, whether the defendant is in law indebted to her. The plaintiff was a married woman, living with her husband at the time the services were rendered for which this action is brought. She was the daughter of the testator, and her husband worked the farm of the testator upon shares,. The referee finds as matter of fact, that from the first of April, 1853, up to the time of the death of the testator on the 5th of July, 1859, the plaintiff worked in his house, and had charge of the household affairs, nursed and took care of the deceased and his wife, who were quite aged; the testator at the time of his death being upwards of eighty years of age, and his wife between seventy and eighty. ■ The referee further finds that this work, labor and care were all “ done under an agreement entered into between the plaintiff and the deceased that she should be paid therefor what her services were reasonably worth; that said agreement was made with *69the knowledge of the plaintiff's husband, without any objection on his part." This agreement gave the wife no title to the earnings, in her own right. In law they belonged absolutely to the husband, and the promise to pay her was in law a promise to pay the husband and no one else. It does not need the citation of authorities to prove that by the common law the husband and wife are but a single person, and that during coverture the husband is entitled to all the services and earnings, of the wife, as well as her personal estate, which vests in him absolutely the moment it comes into his possession, as one of his marital rights. And being but a single person in law, they are, for that reason, incapable of entering into any contract whatever, with each other. In Glann v. Younglove, (27 Barb. 480,) this court held that personal property purchased upon the sole credit of the wife, she having no separate estate, vested in the husband, and became liable to be sold for his debts. The common law still controls the relation and rights of husband and wife in all respects, except where those rights have been modified or changed by statute. There was no statute giving a married woman the right to perform labor or services on her sole and separate account, in this state, until that of March 20th, 1860. (Sess. Laws of 1860, ch. 90.) This was after the services had all been rendered, and that statute could not operate to divest the husband of his right to her earnings. It follows from this, that the plaintiff has no light to these earnings which can be enforced in an action at law, nor indeed, in equity. She has no more right to collect the debt than any other third person. For although the agreement was with her, and she was to be paid, she was incapable of entering into any such contract on her own account, at the time, and could acquire no separate right by it. The assent of the husband was nothing, in law, other than that she might labor on his account and receive the money for him, as his agent; even if the fact found can be construed into a consent that the money might be paid directly to her. *70She could not then take any such right as is now claimed for her by gift from her husband. The idea that she can maintain the action as the trustee of an express trust, as suggested by the plaintiff's counsel, is wholly inadmissible. In respect to this claim, there is clearly no such relation between the plaintiff and her husband as trustee and cestui que trust. They were but one person in law, in regard to it, and that person was the husband. The plaintiff stands, therefore, as a party having no legal or equitable right to the demand whatever, and cannot maintain the action. It is sufficient to defeat the action to show that the plaintiff is without legal right. We have as yet, I believe, no statute authorizing a wife to bring and maintain an action to collect the demands due her husband; and it is quite unnecessary for the courts to undertake to go in advance of the legislature in conferring new and extraordinary rights upon the wife, or in merging the rights of the husband in the wife.
[Monroe General Term, March 7, 1864.The judgment must therefore be reversed, and a new trial granted, with costs to abide the event.
WeBes, J. 0. Smith and Johnson, Justices.] ■