for the landlord, insisted (among other things,) that the second ground upon which the tenant’s counsel moved to dismiss the proceedings was untenable. There is nothing in the law as it now stands rendering a married woman incapable of making a contract of hiring, such as was proved in this case ; and where a married woman is sued in matters relating to her separate obligations or contracts, the husband is not a necessary nor even a proper party. (Laws-of 1860, pp. 157, 8. Laws of 1862, p. 344.) But if. the proceeding before the justice should have been against the relator's husband, then this writ is improperly allowed, for he is the true tenant, and alone entitled to claim the restitu*532tian which is sought and demanded by the relator. How could this court order a restitution to a person who was never the tenant, and who, by her own showing, has no standing in court ? (3 B. S. 839, 5th'ed. § 48.)
[New York General Term, November 7,1864. Clerke, J.It is scarcely necessary, on the present occa-
sion, to consider the effect of the statutes of 1860 and 1862, “concerning the rights and liabilities of husband and wife,” upon the capacity of a married woman to become liable as the tenant of premises, not connected with or used for any trade or business, which she may be carrying on. In these proceedings, the relator attempts to show that her husband, and not herself, bears the relation of tenant to the defendant. This is altogether inconsistent with the allegations in her petition, in which she states that she is aggrieved by the j udgment and adjudication of the justice. If her husband is, indeed, the tenant, and has been ejected from the premises without due notice, he alone is entitled to judgment of restitution ; and he alone should be the relator in these proceedings. We can not order restitution in favor .of a person not a party to the proceedings.
The judgment of the justice should be affirmed, and the certiorari dismissed without costs.
Leonard, P. J. concurred.
Sutherland, J.I can not concur. It is very plain - to me that the proceeding should have been against the husband of the relator, as tenant.
Judgment affirmed.
Leonard, Clerke and Suth« erland, Justices.]