I suppose the husband is still entitled to the services of the wife. This must be so, because on the husband only lies the obligation to support the family.
If not entitled to her services, while bound to support her and the children, he cannot require her to aid him, or claim to receive *465the value of her services when she works for others. She may perform labor and services, as she may carry on business on her separate account. But not all labor performed by her is necessarily separate. Filer v. N. Y. C. R. R. Co., 49 N. Y. 47. A wife cannot recover for loss of ability to work. If her earnings were her own, then she could recover, although not actually engaged in work. A man recovers for damages by reason of inability to work when injured. Whether he was actually working or not is important only as a test of the value of his Work, not as a ground of recovery. Therefore, if a married woman were entitled to her earnings in all cases, the decision in Filer v. N. Y. C. R. R. Co. would be wrong.
Brooks v. Schwerin, 54 N. Y. 343, seems to be an overruling by the Commission of Appeals of Filer v. N. Y. C. R. R. Co., decided by the Court of Appeals. See dissenting opinion of Lott¿ C. C.
Adams v. Curtis, 4 Lans. 164, only holds that the earnings in that case might be separate, although there had been no other separate work. The contract, in that case, was between the wife and a firm of which the husband was a partner. That fact made the earnings, or might make them, separate property.
In the present case, there is no evidence that the husband knew any thing about the services. If we reverse the judgment, we must hold, unqualifiedly that every time when a married woman does any work for a person other than her husband, her earnings are separate. If this be so, I do not see why she is not entitled to be paid by her husband when she does work for him ; nurses him in sickness or sews on his buttons in health'.
If we are to take the statute literally: “the earnings of any married woman from her * * * labor and services shall be her sole and separate property,” why not her earnings in the work of the household ? The section must be read as a whole. “A married woman may, etc., etc., perform any labor and services on her sole and separate account, and her earnings * * from (such) her * * labor and services shall,” etc., etc. That is, she may carry on business and she may perform labor on her separate account. But not necessarily all business carried on, or labor performed by her, is on her separate account.
The judgment should be affirmed.