2 N.Y.S. 319 | N.Y. Sup. Ct. | 1888
This action was originally brought in justice court to recover pay for making dresses for the defendant and her children, and for the furnishing of the materials in connection therewith. The trial in that court resulted in a judgment for the plaintiff, and an appeal was taken therefrom to the county court, in which court a new trial was had, resulting in a verdict for the plaintiff.
The plaintiff is the assignee of the claims in question, and it appears that the defendant was a married woman, living with her husband, who was engaged in business, and that he paid all the bills contracted for his family up to the time of his failure; that, in November, 1880, he failed in business, and has since been insolvent. The evidence of Mrs. Wechter, the plaintiff’s assignor, is that, “at the time I became acquainted with Mrs. Ovens, she came to see me about having some dresses made. She simply brought her goods, ■and wanted to know if I would make her dresses, and I told her, • Yes.’ And I asked her what name I would put down at the head of the list of the ■order, and she said, ' Mrs. Walter S..Ovens.’ I put it down in that way.” It further appeared that, from time to time, bills were sent to Mrs. Ovens, and were by her paid; that, on the 24th day of June, 1880, preceding the failure of Mr. Ovens, there was a balance due upon the account of $109.51; that, after the failure of Mr. Oyens, a bill was sent to the defendant, who stated that she could not pay the bill then, but that just as soon as she could get any money it would be the first of her bills that she would pay. Mrs. Wechter testified that “nothing was said when the goods were ordered about paying. This conversation about pay was all afterwards, when I presented the bill.” And, again, that she knew she was a married woman, and what her husband’s business was; that nothing was said about his credit; that she knew they were a family living together, and nothing was said about her having any estate of her own. The question presented is as to whether Mrs. Ovens is liable. No question is made but that she ordered the dresses; that they were for herself and children; and that there is a balance owing thereon.
The rule is that a married woman cannot bind herself by contract, unless —First, the obligation was created by her in or about carrying on her trade or business; or, second, the contract relates to, or is made for the benefit of, her separate estate; or, third, intention to charge the separate estate is ex
Barker, P. J., Bradley and Dwight, JJ., concurred.