inasmuch as our present system of procedure has expressly done away with former distinctions between legal and equitable remedies. Code Civil Proc. §3339. Distinction in the application of principles still exists, it is true; but, if sufficient facts are set forth in the complaint to entitle the plaintiff to the relief sought, it matters very little whether the form of the action be legal or equitable. In either case, it is the duty of the court to award the relief to which the facts stated and established entitle the plaintiff. Wright v. Wright, 54 N. Y. 437; Hale v. Bank, 49 N. Y. 626; Stevens v. Mayor, 84 N. Y. 296. The rule, thus stated, is subject, however, to one qualification; and that is that where the action is what may be termed "legal" in its nature, and the defendant demands a jury trial, the court must direct the cause to be so tried. Wheelock v. Lee, 74 Ñ. Y. 495. This is a constitutional right, and one of which a party cannot be deprived unless he expressly waives it, which certainly was not done here; for, before any evidence was given, counsel demanded that the case be tried by a jury. That the action is one which, if it were between strangers, would come within the term "legal," as distinguished from "equitable," is quite obvious, and there is therefore no alternative but to accede to this demand, and send the case to the circuit, notwithstanding the evidence discloses no substantial defense upon the merits, provided the court is satisfied that a legal action can be maintained by this plaintiff against the defendant, who, as has been stated, is his wife.

The question thus presented for consideration is by no means free from difficulty, which is made all the more embarrassing by reason of the contrariety of opinion in the different courts of this state. The decisions bearing upon this subject, being in direct conflict with each other, have led to great confusion; and until the precise question, unhampered by other complications, is fairly passed upon by the court of last resort, it will require considerable temerity upon the part of a subordinate tribunal to record its own conclusion; for, whatever it may be, it is open to the criticism of antagonism to that of some other and higher authority. To illustrate. In the case of Wright v. Wright, supra, the commission of appeals held that a wife might maintain an action against her husband upon a promissory note, and that it mattered not in what form she brought her action. In Wood v. Wood, 83 N. Y. 575, it was held that a wife might maintain eject ment against her husband. In Howland v. Howland, 20 Hun, 472, it was held that she might likewise maintain replevin; in Berdell v. Parkhurst, 19 Hun, 358, that the husband might sue his wife for conversion. While in a very recent case decided by the general term of this department, (Granger v. Granger, 2 N. Y. St. Rep. 211,) it was held that a husband and wife might contract with each other, and that an action at law could be maintained upon a promissory note given by the latter to the former. At first blush, these citations would seem conclusive upon the question under consideration. A careful examination convinces me, however, that, so far as it relates to this precise question, what is said in the first two cases is obiter; while the remainder are overruled, in principle at least, by some more recent decisions of the court of appeals. The general term in

the First department, in the case of Schultz v. Schultz, 27 Hun, 26, held that a married woman might sue her husband in a civil action for assault and battery. This decision, which is in direct conflict with those of Freethý v. Freethy, 42 Barb. 641, and Longendyke v. Longendyke, 44 Barb. 366, was placed upon the ground that the acts of 1848, 1849, 1860, and 1862 had not only destroyed the unity of husband and wife, but had expressly conferred upon them the right to sue each other in any form of action. On appeal to the court of appeals the case was reversed, (89 N. Y. 644;) and, although no opinion was written, the ground upon which the reversal was granted is made quite obvious by the reference thereto which occurs in the celebrated case of Bertles v. Nunan, 92 N. Y. 160, in which the court says: 'Although section 7 of the act of 1860 authorizes a married woman to maintain an action against any

person for an injury to her person or character, yet we have held that she cannot maintain an action against her husband for such an injury." Certainly no distinction is made, in the section referred to, between an action for a personal injury and any other of a strictly legal nature; and, if a wife may not bring suit for assault and battery, it is difficult to see upon what principle she may bring one for either conversion, replevin, ejectment, or to recover the amount due upon a promissory note. Indeed, the language of the court which precedes that already quoted, is utterly inconsistent with the idea of any such right being conferred by the acts in question. That the general term of this department is thus impressed by the decision in the Bertles Case is apparent in reading the opinion of HAIGHT, J., in the case of Kaufman v. Schoeffel, 37 Hun, 140, in which, after commenting upon and quoting from that decision, he concludes that the statutes of this state do not empower a married woman to carry on business as a copartner of her husband, for the simple reason that the unity of husband and wife still exists as under the common law, and so far as transactions between them are concerned. The doctrine of the Bertles Case was subsequently reiterated by the court of appeals, (Zorntlein v. Bram, 100 N. Y. 13, 2 N. E. Rep. 388;) so that the present weight of authority, I think, may be fairly considered as adverse to the principle contended for by the defendant.

If, however, I were compelled to consider the proposition as an original one, unaided by the light thrown upon it by these later decisions, it would seem that the same conclusion must inevitably be reached. The statutes hereinbefore referred to, being in derogation of the common law, are to be construed strictly; and, as is stated by Dwarris, "it is not to be presumed that the legislature intended to make any innovation upon the common law further than the case absolutely requires.' The application of this canon of construction makes it necessary, therefore, to find some enactment which in express terms, and not inferentially, confers upon husband and wife the right to maintain against each other an action at law. With this end in view, let us consider very briefly recent legislation upon this subject. Neither the act of 1848 nor that of 1849 contains any provision relating to the bringing of suit by married women. Obviously, the extent to which the legislature designed to invade the common-law rule by those acts was simply to confer upon married women the right to take, hold, and convey their separate estate in the same manner as though unmarried. By the act of 1860, as thereafter amended by section 7, c. 172, Laws 1862, the additional right and liability to "sue and be sued in all matters having relation to her sole and separate property, ** * * in the same manner as if she were sole," was conferred upon her. It is noticeable that the language of this section is substantially the same as that of section 3 of the act of 1849, which permits a married woman to bargain, sell, and convey her real estate in the same manner and with like effect as if she were unmarried; and yet the court of appeals held, in White v. Wager, 25 N. Y. 328, that this language did not enable her to convey directly to her husband; and this decision has been acquiesced in down to within a year past, when it was abrogated by express enactment. Laws 1887, c. 537. It would seem, therefore, that if it required specific action on the part of the legislature to enable husband and wife to convey directly to each other, it would require similar action to authorize them to sue each other. Careful investigation, however, discloses no such intention on the part of the law-making power. On the contrary, the amendment of 1862, which has given rise to the conflicting decisions herein before referred to, was repealed by chapter 245 of the Laws of 1880, and in lieu thereof we now have only section 450 of the Code of Civil Procedure, which provides that, "in an action or special proceeding, a married woman appears, prosecutes, or defends, alone or joined with other parties, as if she was single." Certainly, there is nothing in this language which can be construed to confer upon husband and wife the right to maintain a legal

action against each other. If we were seeking for information as to the intention of the legislature, as disclosed by these various enabling acts, the act of 1884, c. 381, might be of some assistance to us. By reference to that it will be seen that, while conferring upon married women the right to make contracts in the same manner as if single, it expressly excepts from its operation contracts between husband and wife. It must be conceded, I think, that there is nothing in the acts, thus far adverted to, which destroys the commonlaw unity of husband and wife to the extent contended for by the learned counsel who submitted this case on behalf of the defendant, unless we follow the reasoning of the cases heretofore adverted to, one of which has, as already suggested, been expressly reversed, and all of them inferentially overruled by the court of appeals. There is yet another complete answer, in my judgment, to the defendant's contention. The several acts to which attention has been directed, were designed for the protection of the wife, and to confer upon her certain rights and privileges; and the earlier ones were entitled acts "for the mere effectual protection of the property of married women." It would be an unwarranted perversion of their design to hold, as would be necessary in this case, that the acts in question conferred upon the husband a privilege which was not afforded him by the common law. This was the view taken by Mr. Justice POTTER in Perkins v. Perkins, 7 Lans. 19, as well as by Judge DENIO in White v. Wager, supra, and is one which possesses great force, although I prefer to place my decision upon the broad principle that the sound and sensible rule which obtained at common law relating to the unity of husband and wife has not yet been so far abrogated as to confer upon him the much-coveted privilege of bringing their quarrels into a court of law. I am not unmindful of the contention frequently heard, that the innovations which our modern civilization has made upon the conservatism of remoter generations respecting the marital relation are so radical in their character as to render it improper, if not impossible, to stop short of complete revolution; and such does, indeed, appear to be the tendency of recent legislation. I think, however, that I can perceive, upon the part of the court of last resort, a disposition to throw the responsibility for the new order of things solely upon the law-making power, and at the same time to place a check upon this tendency by adopting and adhering to rigid rules of construction.

The views to which I have given expression necessarily lead to a denial of the defendant's motion. It does not follow, however, that the plaintiff may not maintain his action. He has invoked the aid of a court of equity to grant him the relief which he could not obtain in a court of law. In the forum thus selected by him, although the principles of the common law are fully recognized, yet they are not exclusively considered. On the contrary, courts of equity will, in furtherance of the manifest intentions and objects of the parties, carry into effect a contract entered into between husband and wife, although it would be void at law; and, in order to accomplish this, will entertain a suit at the instance of either against the other. 2 Story, Eq. Jur. § 1368 et seq.; Shepard v. Shepard, 7 Johns. Ch. 57; Hunt v. Johnson, 44 N. Y. 27. The plaintiff's demand, which, as already intimated, is virtually undisputed, is one which calls for the interposition of equitable principles for its enforcement, inasmuch as it does not appear that he has any legal remedy. Judgment is therefore directed in his favor; but inasmuch as the question passed upon is a somewhat novel one, and one concerning which it was conceded at the time that the practice was unsettled, a proper case presents itself for the exercise of the discretionary power of the court in the matter of costs, and none are awarded to either party.

(49 Hun, 241)

CITY OF NEW YORK v. DIMICK.

(Supreme Court, General Term, First Department. June 19, 1888.) 1. MUNICIPAL CORPORATIONS-ICY STREETS-ACTION BY CITY-PLEADING.

A city sued to recover from defendant the amount of a judgment against it for injuries resulting from a fall on the ice, caused by water running from the waterspout of defendant's building. The complaint alleged that the spout was a nuisance; that the city defended the action, and paid the judgment; but did not allege any such notice of the nuisance as would render the city liable for the accumulation of ice. Held that, as the judgment could have been recovered only on proof of such notice, the allegation that it was rendered requires the inference that the city had such notice.1

2. SAME-ICY STREETS-LIABILITY OF NEGLIGENT PROPERTY OWNER TO CITY.

In such a case the city and the person whose negligence caused the injury are not in pari delicto; and where, as in this instance, the negligence of the city is constructive, rather than actual, the rule that one wrong-doer cannot recover damages against the other for injuries caused by their joint offense cannot apply.1 Appeal from special term, New York county; G. L. INGRAHAM, Justice. The mayor, aldermen, and commonalty of the city of New York sued Jeremiah W. Dimick. A demurrer to the complaint was overruled, and defendant appeals.

Argued before VAN BRUNT, P. J., and BARTLETT and MACOMBER, JJ. J. H. Dougherty, for appellant. T. D. Wickes, for respondents.

BARTLETT, J. The complaint in this action alleges that the defendant was the owner of certain premises in the city of New York, upon which he constructed and maintained a pipe or leader, which gathered water from the roof, and spouted it upon the front sidewalk; that this pipe was maintained by the defendant without due care or proper protection, and was allowed to become and remain out of repair, and was a public nuisance; that water spouted therefrom upon the public highway in front of the premises for such a length of time that it become frozen in large and irregular masses, by reason whereof one Richard Koerner, without any negligence on his part, and solely in consequence of the accumulation of ice, which rendered the highway dangerous, slipped, fell, and broke his leg, and sustained great bodily injuries; that thereafter the said Richard Koerner sued the plaintiffs herein "to recover from them the damages suffered by him as aforesaid, and caused by the dangerous condition of the sidewalk;" that these plaintiffs defended themselves in said action, but a verdict was rendered therein against them, and a judgment was entered for $2,766 damages, and costs, which the plaintiffs subsequently paid; and that the defendant herein has paid nothing on account of the matters aforesaid, although the plaintiffs have demanded payment from him. The defendant demurs to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. He relies chiefly upon the point that the complaint is defective in omitting to allege or admit that there was any negligence on the part of the city sufficient to enable Koerner to maintain his action. To render a municipal corporation responsible for injuries resulting from the accumulation of ice or snow in a highway, it must appear that it has negligently suffered the obstruction to remain after actual or constructive notice of its existence. Taylor v. City of Yonkers, 105 N. Y. 202, 11 N. E. Rep. 642. There is no express allegation in the complaint that the city had any such notice of the existence of the obstruction in front of the defendant's premises as would warrant the imputation of negligence in permitting it to be upon the highway. To show that this defect is fatal, the appellant cites the case of Fahey v. Town of Harvard, 62 Ill. 28, where

1 For a full discussion as to the liability of a municipal corporation for injuries resulting from defective streets and sidewalks, and also the liability of a negligent property owner to the municipality, see Davis v. City of Jackson, (Mich.) 28 N. W. Rep. 526, and cases cited in note.

a person dug a pit in a street, into which another fell in the night-time, and sustained injuries. When sued by the latter, the town settled the claim before judgment, and without notice to the person by whom the pit was dug. The town then brought an action against the creator of the nuisance to recover the amount which it had paid to the injured person. On demurrer the declaration in this suit was held to be bad, there being no allegation that the town had notice of the nuisance, and no facts being alleged from which notice might have been inferred or implied. In the case at bar, however, certain facts are set out in the complaint which necessarily imply that the city had sufficient notice to make it legally liable. It is averred that the injured person brought an action against the mayor, aldermen, and commonalty of the city of New York to recover from them the damages suffered by him, and caused by the dangerous condition of the sidewalk, primarily due to the present defendant's negligence, and that the suit was defended, and such proceedings were had that a verdict was rendered against the city, which it paid. Such a result could have been reached only upon proof which charged the municipality with notice of the obstruction which caused the accident; and the allegation that it was reached, not only justifies, but requires, the inference that the city had such notice. We think this was sufficient.

While thus insisting that the complaint is defective because it contains no express allegation showing that the city was at fault, the defendant proceeds to argue, in substance, that, even if such an averment were inserted, it would not make the complaint good, because it would show that the city and the defendant were joint wrong-doers, and hence one could not have indemnity or contribution from the other. When a municipal corporation, without any wrong-doing on its part, has been compelled to pay damages to a person injured by obstructions in the street, caused by the negligence of another, it may recover such damages from the person who negligently created the obstruction. 2 Dill. Mun. Corp. § 1035, approved in Catterlin v. City of Frankfort, 79 Ind. 547; Village of Port Jervis v. Bank, 96 N. Y. 550, and cases therein cited. In such cases the municipal corporation and the person whose negligence occasioned the accident are not in pari delicto. Lowell v. Railroad Corp., 23 Pick. 24. Hence the rule that one wrong-doer cannot maintain an action against another to recover damages incurred in consequence of their joint offense does not apply. This is very clearly shown by the wellconsidered opinion of the supreme judicial court of Massachusetts in the case last cited. Where the parties are not equally to blame, it is declared not to be against the policy of the law to inquire into the relative delinquency of the parties, and to administer justice between them. Such a course is manifestly just, where the negligence of one of the parties, as in the present case, is constructive, rather than actual.

The interlocutory judgment should be affirmed, with costs, but with leave to the defendant to plead over on the usual terms.

VAN BRUNT, P. J., and MACOMBER, J., concur.

(49 Hun, 220)

PUTZEL 0. WILSON et al.

(Supreme Court, General Term, First Department. June 19, 1888.) FACTORS AND BROKERS-Failure to EffECT LOAN-RIGHT TO COMMISSIONS.

Where defendants agree to pay plaintiff a certain sum for negotiating a loan for them on certain real estate, the amount to be deducted from the loan when obtained, plaintiff can recover the agreed amount when he procures a person willing and ready to make the loan, and it fails because defendants' title to the real estate proves defective; and defendants cannot insist as a defense that plaintiff cannot procure his compensation in the literal mode set forth in the agreement.1

As to when a broker's commissions are considered earned, see Hannan v. Moran, (Mich.) 88 N. W. Rep. 909, and cases cited in note.