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3 Univ. L. Rev. 67 (1896-1897)
Assault and Battery (Wife vs. Husband)

handle is hein.journals/ulrny3 and id is 69 raw text is: THE UNIVERSITY LAw REVIEW. VOLUME III. FEBRUARY, 1897. NUMBER . ASSAULT AND BATTERY. (Wife vs. Husband.) M AY husband and wife, in this State, sue each other in a civil action to recover damages for assault and battery? Although our court of latest resort, in Schultz vs. Schultz, 89 N. Y. 644, has answered this question in the negative, and, unfortunately without opinion, reversed an order of the General Term in the First Department, which affirmed an order of Special Term denying a motion to vacate an order of arrest in an action by a wife against her husband for assault and battery, and dis- missed the complaint, such actions have recently been instituted here, and applications for orders of arrest have been made under subdivision 2 of section 549 of the Code of Civil Procedure. It is well settled that, at common law neither could maintain such an action against the other. Although courts of equity, for many purposes, treated husband and wife as persons of distinct legal existence, as the civil law treated them, capable of having separate estates, debts and interests, the common law inflexibly incorporated and consolidated the legal identity of the wife with that of her husband, and denied the right of the one to sue the other, technically on the ground of the legal fiction of unity. Re- ferring to actions of this nature between husband and wife, Mr. Reeve (Dom. Rel., 4th ed., p. 98) remarks: There is no doubt but that there

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