84 N.Y.S. 806 | N.Y. App. Div. | 1903
The complaint averred a cause of action upon a promissory note made by the defendant Holmes and indorsed .by the defendant But. terfield. At the time the note was made the defendant was an infant over the age of fourteen years. The note itself, together with the indorsement thereon, was set ofit in the complaint, and it averred in connection therewith that the note was given for necessaries supplied to the infant in the form of board and tuition at the school conducted by the plaintiffs, and that the education so furnished was such as was suitable to the station in life of the infant; that the necessaries were supplied at the request of the infant and of her guardian, the defendant Butterfield. The answer, among other things, pleaded infancy as a defense to the note. Upon the trial the court held that there could be no recovery upon the promissory note, and that the infant could not be bound upon her executory contract. The court, however, permitted the action to proceed against the infant upon the theory that the complaint averred a cause of action as and for necessaries furnished to the infant, holding that a recovery might be had, if the board and tuition were necessaries, to the extent of their reasonable value, and the court submitted such question to the jury upon that theory. The jury found a verdict in favor of the plaintiffs for the amount represented by. the note. The evidence justified a finding that the board and tuition were a necessary of the infant and that the reasonable value thereof was the sum which the jury found. It is the contention of the defendant infant that the complaint stated a cause of action solely upon a promissory note, and that as the infant could not be bound by that contract the complaint as to her should have been dismissed. The complaint is somewhat meagre in its statement of a cause of action upon which to charge the infant as and for necessaries furnished, but within the doctrine announced in Goodman v. Alexander (165 N. Y. 289) we think the complaint may be regarded as sufficient to present such issue. Reaching this conclusion, we are confronted with the question as to whether a case was made which justified a recovery against the infant for necessaries furnished to her, and if so, whether reversible error was committed by the court in the disposition which it made of the case.
The evidence disclosed that both parents of the infant died when
It follows’ that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.