dissenting. By the statutes of 1860, chap. 90, it is enacted that the property which a married woman “acquires by *466her trade, business, labor or services carried on or performed on her sole or separate account * * * shall, notwithstand ing her marriage, be and remain her sole and separate property, and may be * * * collected * * * by her in her own name and shall not be subject to the interference or control of her husband, or liable for his debts.” By the second section of that act it is provided that “ a married woman may * * * perform any labor or services on her sole and separate account, and the earnings of any married woman from her * * * labor or services shall be her. sole and separate property.”
Undoubtedly the object of this and other similar laws was to protect married women from the incompetency, the rascality and dissipated habits of husbands. It is the duty of the husband to provide for and support the wife. Experience, however, has often shown that husbands have failed in this duty, and that the wife has supported the husband and his family. Where he is wasteful, dissipated and reckless he would often spend all his own earnings and the property and earnings of his wife, and under the common law she had no protection. Even if living separate Horn him, and supporting herself, his creditors could, for his debts, seize her prudent accumulations and leave her destitute. He was as absolutely entitled to her industry and earnings as though she were his slave. These laws were passed to emancipate the wife. Such has been the view taken by the courts. _ .
Now it is held that the ordinary domestic services of the wife are not carried on for her own account, but for the joint benefit of the family as a duty to the husband. But when she goes outside of the family and performs services not due to her husband, such services do not of right belong to the husband, and her earnings are her own as if she were a feme sole. Brooks v. Schwerin, 54 N. Y. 343, 348.
The reasoning of Lott, C. C., in the dissenting opinion in this case, would lead to most unhappy results. The security of the wife’s natural rights would lead to a separation of families. The wife, instead of struggling to preserve the family circle, would be rewarded only upon condition of its abandonment. The case of Filer v. N. Y. C. R. R. Co., 49 N. Y. 47, which is cited as an authority for such a doctrine, in fact decides only that the wife could not recover for the loss of ability to labor and earn money by reason of an injury, because she was not actually engaged in some *467service in which, hut for the injury, she would have earned something for her separate benefit. There was no claim in that case that she had ever done any but household labor and domestic service in the family of her husband.
But if the case were doubtful upon .principle, it is res adjudicaba in this court. The very point was decided in Adams v. Curtis, 4 Lans. 164, in which Miller, P. J., says: “hTor is it essential, for the purpose of maintaining an action to recover for her labor and services, to show that she carried on business on her own account, beyond the claim for which the action is brought. It is enough that a separate contract is made with her for her services to entitle her to recover, without the necessity of holding out to the world that she is transacting business on her separate account, as a feme sole, with the permission of her husband.” This is decisive of the present case. The case of Adams v. Curtis, so far as its principles apply to the one under discussion, has been approved in Perkins v. Perkins, 62 Barb. 531, 540.
The judgment and order of the county court should be reversed and a new trial granted, costs to abide the event.
Judgment affirmed.