¶1 (dissenting). The plaintiff, while riding in an automobile driven by Hyman Caplan, her husband, and owned by E. Caplan & Son, a copartnership, consisting of said Hyman Caplan and Simon Caplan, sustained personal injuries as the result of a collision between the automobile and a bus. An action brought by her against the bus company was terminated by a verdict of no cause of action. The plaintiff then commenced this action against the defendants individually and as copart-ners. The answer admits ownership and the use of the car at the time in the partnership business and sets up as a defense that the driver of the automobile, the defendant Hyman Caplan, is the husband of the plaintiff. The reply admits the relationship between these parties. A motion by the defendants for judgment on the pleadings dismissing the complaint was denied at Special Term. The Appellate Division reversed and dismissed the complaint.
¶2 The sole question involved is whether the complaint states a cause of action against either of the partners or the partnership.
¶3 The common-law rule that one spouse cannot sue the other, although relaxed to a large extent by the “ Married Women’s Law ” (Cons. Laws, ch. 14, art. 4), is still effective in this State to bar an action for negligently inflicted personal injuries or other tortious acts. (Allen v. Allen, 246 N. Y. 571; Schubert v. Schubert Wagon Co., 249 N. Y. 253.) It is clear, therefore, that the complaint, in so far as it attempted to state a cause of action against the husband, Hyman Caplan, individually or as a member of the partnership, was properly dismissed.
¶4*454 The plaintiff, however, may maintain a cause of action against the other partner individually. The determination of the question depends upon the application of the principles stated in Schubert v. Schubert Wagon Co. (supra). In the Schubert case the plaintiff sued a corporation for injuries suffered by her as a result of the negligent acts of her husband in the course of his employment by the corporation. Prior to that time several other States had held that a recovery could not be had in similar circumstances. (Maine v. Maine & Sons Co., 198 Iowa, 1278; Riser v. Riser, 240 Mich. 402; Emerson v. Western Seed & Irrigation Co., 116 Neb. 180.)
¶5 The distinction between culpability and liability was pointed out in the Schubert case. A wife cannot maintain a suit against her husband but that does not mean that he is not guilty of a wrongful act. The fiction of the unity of husband and wife bars a cause of action. In a way, this is analogous to a contract not to sue. Cakdozo, Ch. J., writing for the court, said: " But the master is not exonerated when the servant has had the benefit of a covenant not to sue (Gilbert v. Finch, 173 N. Y. 455; Walsh v. N. Y. C. & H. R. R. R. Co., 204 N. Y. 58), or has set up a discharge in bankruptcy, or has escaped liability upon grounds not inconsistent with the commission of a wrong unreleased and unrequited.” (Schubert v. Schubert Wagon Co., supra, at p. 256.) The suit is barred but that does not alter the wrongfulness of the act.
¶6 “A. trespass, negligent or willful, upon the person of a wife, does not cease to be an unlawful act though the law exempts the husband from liability for the damage. Others may not hide behind the skirts of his immunity. The trespass may be a crime for which even a husband may be punished, but whether criminal or not, unlawful it remains. As well might one argue that an employer commanding a husband to commit a battery on a wife, might justify the command by the victim’s disability. … Unlawful the act remains, however shorn of a *455 remedy. (Bennett v. Bennett, 116 N. Y. 584.) ” (Schubert v. Schubert Wagon Co., supra, at p. 256.)
¶7 A principal is liable for tbe wrongful acts of bis agent in the course of his employment. This vicarious liability is founded on the theory that the acts of his agent are his own acts. (Laski, The Basis of Vicarious Liability, [1916] 26 Yale Law Journal, 105.) “ In each case the governs that he who acts through another, acts by himself.” (Schubert v. Schubert Wagon Co., supra, at p. 257.) The wrongful act is regarded as that of the principal and an action may be maintained against him, although an action against his agent is barred by reason of the marital unity, similar to a covenant not to sue. It differs from the situation where it is held that the master is not liable if after a trial it is found that the servant is not liable. (Pangburn v. Buick Motor Co., 211 N. Y. 228; New Orleans & N. E. R. R. Co. v. Jopes, 142 U. S. 18.) There a finding that the servant is not liable necessarily means that the servant is guilty of no wrong. The servant being absolved of wrongdoing, there is no other foundation for a finding that the master has done wrong.
¶8 Since the decision in the Schubert case several States have adopted this reasoning. (Chase v. New Haven Waste Material Corp., 111 Conn. 377; Poulin v. Graham, 102 Vt. 307; McLaurin v. McLaurin Furniture Co., 166 Miss. 180. Contra, Sacknoff v. Sacknoff, 131 Me. 280.)
¶9 Turning to the law of partnership, we find that it is held that for a tortious act of a partner a cause of action arises against all partners individually and as copartners. (Matter of Peck, 206 N. Y. 55; Roberts v. Johnson, 58 N. Y. 613; Partnership Law, §§ 24, 26.) It may be maintained against any or all of them; it may be maintained alone against one of the partners who has committed no wrong. (Kavanaugh v. McIntyre, 242 U. S. 138, affg. 210 N. Y. 175; Boston Foundry Co. v. Whiteman, 31 R. I. 88; Dixon v. Haynes, 146 Wash. 163; Hamlyn v. Houston & Co., [1903] 1 K. B. 81.)
¶10*456 “ Each partner acts, as to himself, as a principal, having a joint interest in the partnership property, and, as to each other partner, as a general agent.” (First Nat. Bank v. Farson, 226 N. Y. 218, at p. 221.) The other partner is bound although his agent, the partner actually guilty of the wrongful act, may, as in the case at bar, have a personal defense to a suit brought against him. (Schubert v. Schubert Wagon Co., supra.)
¶11 Nor does section 24 of the Partnership Law create a limitation. Section 24 reads as follows: “ Partnership bound byjpartner’s wrongful act. Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership, or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is hable therefor to the same extent as the partner so acting or omitting to act.”
¶12 It is argued that this section read literally means that unless the wrongdoing partner is hable, the other partners are not. But the section is not a shield against habihty. It is only declarative of the common law. Such is the statement of the drafter of the Uniform Partnership Act. (Lewis, The Uniform Partnership Act, [1915] 24 Yale Law 617; Lewis, The Uniform Partnership Act, [1915-1916] 29 Harvard Law Keview, 158, 291.) The principles of agency are apphcable to the law of partnership. (Partnership Law, § 4, subd. 3; § 20, subd. 1.) In agency the gist of the principal’s habihty is the agent’s wrongful act, not his habihty. It thus becomes clear that the Appellate Division erred in dismissing the complaint against Simon Caplan, the partner of Hyman •Caplan.
¶13 It matters not that ultimately Simon Caplan may recover over from Hyman Caplan by way of indemnity. In the Schubert Case (supra) it was said: “ We are told that in the long run the consequences of upholding an *457 action against the master may be to cast the burden on the husband, since the master, if not personally at fault, has a remedy over. (Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N. Y. 461; Wash. Gas Light Co. v. Dist. of Col., 161 U. S. 316, 327; Boston etc., Co. v. Kendall, 178 Mass. 232.) The consequence may be admitted without admitting its significance as a determining factor in the solution of the problem. The master who recovers over against the servant does not need to build his right upon any theory of subrogation to a cause of action once belonging to the victim of the injury. A sufficient basis for his recovery is the breach of an independent duty owing to himself ” (p. 257.)
¶14 A claim for indemnity against Hyman Caplan would not make him a true party to the original controversy and he need only enter a defense to the claim for indemnity made by the defendant. (Municipal Service Real Estate Co. v. D. B. & M. Holding Corp., 257 N. Y. 423.)
¶15 Where a contrary conclusion has been reached in other States it is based on a failure to make the distinction between non-liability and non-culpability. (David v. David, 161 Md. 532. Cf. Belleson v. Skilbeck, 185 Minn. 537.)
¶16 Although the complaint must be dismissed as against the partnership because of the bar against one of the partners, no such obstacle stands in the way of a recovery against the other partner individually.
¶17 Where an actionable injury has been caused through the tortious act of an employee or one of a number of partners, to deny any right of recovery against all the other partners individually because one of the partners is possessed of an immunity to suit personal to him, it is submitted, results in a great injustice not legally required or justified.
¶18 The judgment should be modified so as to reverse the dismissal of complaint against Simon Caplan individually.
¶19 Judgment affirmed.