36 N.Y.S. 665 | N.Y. Sup. Ct. | 1895
The action was to recover the amount of a bill for groceries alleged to have been sold and delivered to the defendant; also to recover a further sum for constructing a sidewalk on the defendant’s premires. The latter claim was not questioned. Mbr was there any controversy had about the amount of the bill for groceries. The alleged liability of the defendant for them was denied and contested by her. The only question for consideration is whether or not the evidence was sufficient to permit the conclusion that the defendant was personally liable for the grocery bill. She was a married woman, having a husband and children.
In the cases where the wife, known by the seller to be such, has been held liable for family supplies purchased while she was living with her husband, the recoveries were supported by a special agreement on her part to pay for them, and such agreement Vas held to be necessary for the purpose. The .rule in that respect is not modified by the act of 1884. Tiemeyer v. Turnquist, 85 N. Y. 516; Hallock v. Bacon (Sup.) 19 N. Y. Supp. 91. The doctrine applied by the court of common pleas of the city of New York in Ehrich v. Bucki, 7 Misc. Rep. 118, 27 N. Y. Supp. 247, is not contrary to the proposition before stated. That case, however, would be less liable to be misunderstood if the facts appeared more fully than they do in the report of the case. A different presumption arises when purchases are made having relation to the separate estate of the wife. In the present case the trial was before the justice and a jury. The justice charged the jury, and in his charge instructed them that there was not sufficient evidence to establish the fact that the defendant authorized the seller of the groceries to charge her for them. Exception was taken. This, in practical effect, was the direction that the jury find for the defendant on that branch of the case; and, if there was any evidence to support a verdict against her as to that alleged claim, his charge was error requiring reversal of the judgment rendered in the justice’s court, otherwise no legal right of the plaintiff was prejudiced by it. The view taken is that there was no evidence to permit recovery by the plaintiff against the defendant, and therefore there was no error to the prejudice of the plaintiff in
The judgment of the county court should be reversed, and that of the justice court affirmed. All concur.