125 Misc. 433 | City of New York Municipal Court | 1925
The plaintiff seeks to recover $878 for goods, consisting of gowns and hosiery, sold and delivered to the defendant.
The defendant defends upon the ground that the goods were necessaries supplied to her during the time when she and her husband were living together. The defendant maintains that her husband, and not she, should pay the plaintiff’s bill. The defendant testified that she went to the plaintiff’s place of business, selected the merchandise and told the salesgirl to “ charge it to me.” The merchandise was thereafter sent to the defendant at the residence at which both the defendant and her husband at that time resided.
The difficulty with the defendant’s position is that it does not appear that the merchandise was supplied to the defendant on the credit of her husband. The uncontradicted evidence is that the merchandise was supplied on the credit of the defendant, the wife. She did not say, when making the purchases, “ charge it to my husband,” but, on the contrary, admits that she said “ charge it to me,” and the account on the plaintiff’s books appears to have been run in the name of “ Mrs. Robert Edeson,” in which form the orders were taken and bills made out. The fact that the account was kept in the name of the wife and bills sent to her does not establish as a matter of law that the credit was given exclusively to the wife. It remains a question of fact. However, the fact that the books show the account in the name of the wife is certainly strong evidence that the credit was given to her and not to her husband. The evidence in the present case to my mind is irresistible that it was upon her credit and not upon her husband’s that the merchandise was sold and delivered to her.
The fact that the account appeared in the name of “ Mrs. Robert Edeson ” and not in the name of “ Mary Newcomb ” or “ Mary Newcomb Edeson,” the defendant being an actress and being known on the stage as “ Mary Newcomb,” does not seem to me to be consequential. I do not discover in this any intention to look to Mr. Edeson rather than to the defendant as the primary obligor for the merchandise ordered by and delivered to her. I have heard of recent movements to have women continue after marriage the use of the name given to them and used by them until their marriage. The practice, however, still prevails generally for a woman, upon her marriage, to assume the name of her husband.
On the evidence presented in this case, it seems to me that only one finding is possible, and that is that the defendant is hable.
Judgment is accordingly given for the plaintiff for $970.50, representing the sum claimed, with interest.
