73 N.Y.2d 792 | NY | 1988
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed.
Plaintiff commenced this action to recover an outstanding balance due for nursing home services rendered to the defendant’s husband as a patient prior to his death. In the complaint, the plaintiff sought to recover against defendant as the conservator for her husband. The complaint also alleges that the defendant is individually liable because she specifically requested the services or expressly agreed, orally and in writing, that she would pay for them. The defendant denied that she had personally assumed liability to pay the bills and claimed that plaintiff’s testator had agreed to waive the outstanding balance. Defendant was unable to establish the waiver defense, however, because she was precluded by the Dead Man’s Statute (CPLR 4519) from testifying with respect to statements made by the plaintiff’s testator.
The trial court initially entered judgment against her in her capacity as conservator, but found that she was not individually liable. On reargument however, the court found that the defendant had expressly agreed to pay for the services. Alternatively the court held that there was a statutory duty, imposed by Domestic Relations Law § 32 (2), to pay for the services provided to her husband. Thus, judgment was also entered against her in her individual capacity.
The Appellate Division modified on the law and the facts by
The Appellate Division correctly held that the plaintiff was not entitled to recover on any of the grounds asserted in the complaint. On this appeal the plaintiff claims that the common-law rule requiring a husband to pay for his wife’s necessaries (Garlock v Garlock, 279 NY 337) is antiquated or violates equal protection and that the law should be changed to impose on a wife the same obligation with respect to her husband. This issue, however, was not preserved for our review.
The constitutional challenge to the common-law rule was not raised in the trial court and may not be considered by this court for the first time on appeal (see, e.g., Tumolillo v Tumolillo, 51 NY2d 790; Di Bella v Di Bella, 47 NY2d 828; cf., Matter of Barbara C., 64 NY2d 866; Matter of Mingo v Pirnie, 55 NY2d 1019). Neither did the plaintiff urge that the common-law rule should be extended on policy grounds. Indeed, a fair reading of the complaint shows that the plaintiff did not rely on the common-law rule with respect to necessaries as a basis for recovery. The plaintiff’s contention throughout the complaint was that the defendant should be held individually liable for the cost of the services rendered to her husband because she had voluntarily assumed the obligation by specific requests for the services or expressed oral and written agreements to pay for them.
In short, the case was pleaded and tried on the theory that the plaintiff had voluntarily assumed the obligation of paying for the services, and not on the theory that it is, or should be, an obligation imposed as a matter of common law because of her status as the spouse of the recipient. It is well settled that when a case has been pleaded and tried on one theory, this court cannot grant recovery on another theory (Macina v Macina, 60 NY2d 691; Collucci v Collucci, 58 NY2d 834, 836).
These principles are not mere technicalities, nor are they
Because the issue is not properly before us, our affirmance should not be construed as a rejection of the view of other courts and Judges Hancock or Titone
Order affirmed, with costs, in a memorandum.
Judges Hancock and Titone would reach the merits because in their view the issue was preserved.