Bowen v. Rathbun

61 A.D. 614

| N.Y. App. Div. | 1901

Parker, P. J.:

The plaintiff' for some years worked the defendant’s farm on shares. On April 1,1898; she removed therefrom, and being unable to adjust their various differences which arose out óf such business relations, this action was brought. In it the plaintiff seeks to recover a sum of money on six different and distinct causes of action. The defense setup two different and distinct Counterclaims. The case came to trial before a referee, who allowed.the plaintiff to recover on the first and second causes of action *615set forth in the complaint, and denied her right to recover on the other four. He also allowed to the defendant the second counterclaim set up in the answer, and disallowed his claim upon the first one therein set forth. Judgment for the difference between the two claims allowed to the plaintiff and the •one counterclaim allowed to the defendant, with the interest allowed on each of such claims, being the sum of §355.79, was entered ■for the plaintiff, with costs of the action, and from such judgment this appeal is taken. We are content with the conclusions which the referee reached in all but the second claim, wherein he allowed the plaintiff to recover the sum of §200 for work done in ■straightening the bank and building a dyke along the creeks upon such farm, and which claim is the second cause of action set forth in her complaint. In that respect we think he was in error, for the following reasons: The plaintiff’s husband was her general agent, as he testifies, in all of her business transactions. So far as the record shows, that was in operating the defendant’s farm only. The contract to do the work upon the two creeks in question was no part of the work of the farm. It was in no way connected with the plaintiff’s lease. It was a permanent repair, which the defendant •could hire done or not, as he chose, and he could hire whomever he chose to make it. Clearly, the contract was made between the -defendant and the plaintiff’s husband. There is not a particle of evidence in the case indicating that he assumed to act as her agent in undertaking to do such work, or that he,, in fact, performed the work on her account. On the contrarj'-, he testified: “ My wife did none of this work herself and paid none of this help. I did it all myself, and the bargain was made with me.” No cause of action arose to her for the §200 which the defendant agreed to pay her husband for doing such work, and it seems clear that, as to that claim, she has failed to provv. herself entitled to it. The defendant’s indebtedness for that work, if any exists, is ■due to the husband and not to this plaintiff. We have carefully examined the evidence and the rulings regarding the other claims set up by each of the parties, and find no reason for disturbing the referee’s conclusions with respect to them, and the judgment, so far as it affects them, is in all respects affirmed. So far as it affects the said second cause of action, however, it must be reversed and a new trial granted as to that cause of action. The referee should be discharged and no costs of this appeal should be allowed to either party. All concurred.