105 N.Y.S. 174 | N.Y. App. Div. | 1907
This action was brought to recover the sum of $5,825, with interest thereon from a specified date, .the value of' certain clothing and wearing apparel sold and delivered by the plaintiff to one Katherine Ballou, now Katherine Brown, with whom the decedent had lived in meretricious relations, and wlio. had at various times passed as his wife. The decedent died June 21, 1903, and the clothing and wearing apparel were alleged to have been purchased between March tenth and June fifteenth of the same year. The plaintiff had a verdict for the full amount claimed, and from the judgment entered thereon and an order denying a motion for a new trial the defendants appeal.
The plaintiff seeks to sustain the judgment upon either one of two theories: First, that the evidence adduced.at the trial shows +hat Katherine Ballou was the common-law wife of the decedent or at least was held out by him to be his wife, and that lie thereupon became liable as a husband.for necessaries furnished to her; and second, that he "expressly promised to pay for the clothing and wearing apparel. ,
I am of the opinion that the judgment cannot be sustained upon . the first of these theories. The am contradicted testimony of Katherine Ballou shows that Watrous had been giving her in the neighborhood of. $1,200 or $1,300 a month for living expenses for over a year before his death, and certain checks put in evidence would seem to indicate that he gave her even more than this! The law, where a husband, makes a suitable allowance to a wife for her support, has been clearly and definitely settled in this State by the recent decision in Wanamaker v. Weaver (176 N. Y. 75). Judge Haight, in delivering the opinion of the majority of the court in that case, after referring to several English cases, said: “ The discussion
At the time the decedent died, his entire, assets, without, making any deductions whatever, amounted to less than $200,000, and his income for some time-prior to his death was not far from $20,000, The allowance, therefore, which he made .to Katherine Ballou was,
Hor do I think the judgment can be sustained upon the second theory — that of, a special promise.' The bill of particulars furnished by plaintiff states tliat she was told by Katherine.Ballou and others that Kat'herine Ballou was the wife of Walter W. Watrous, the decedent; that on September 22, 1902, at her direction, the plaintiff charged all goods purchased by Katherine Ballou to him ; that a few days thereafter he told plaintiff “ to let Iris wife ” (referring to Katherine Ballon) “ have whatever she wanted.” There was no evidence offered at the trial which established the facts thus stated in the bill of particulars; there was, however, some evidence which tended to establish an express promise on the part of the decedent, and this consisted of the- testimony of the witnessTTelen Magill, a former employee of the plaintiff. She testified, in substance, that in the fall of 1902 she delivered certain, gowns to Mrs. Ballou at the Manhattan Hotel in the city of New York; that the decedent was present and that he then told her to tell the plaintiff to let Mrs. Ballou have anything she wanted, and he would pay for it. This witness was then employed' as an errand girl. I do not think the promise, even as testified to by her, can be construed as applying to any other transaction than the one then under consideration. The goods which were then selected wTere subsequently paid for, and those which are the subject-matter of this action were not ordered of delivered until several months thereafter. And in this connection it is worthy of consideration that it does not satisfactorily appear that the plaintiff placed any reliance upon the promise, or materially changed her position by reason of it. Katherine: Ballou had previously had an account with the plaintiff; her account as Mrs. Watrous charged to decedent was, according to the bill of particulars, opened September 22, 1902, and the alleged special promise was not made'until some time thereafter; Katherine Ballon paid for all goods bought in the fall of that year, amounting to something like $1,600 in cash payments, with the exception of one check made by Watrous for $100,- but this is without significance, as he had given a check for $250 which was applied to the 1902 spring account. It does not .appear tliat he was ever inside
After a careful consideration of all. the evidence bearing upon the alleged express' promise, I do not think it satisfactorily establishes, or is sufficient to sustain a finding that any such promise was .made. Mrs. Magill testified that when she went to the Manhattan Hotel on' the occasion referred to she asked for Mrs. Ballou, under ■ which name she was known to the witness, -and she was then informed' by some one in charge of the office that, there was rib . such person stopping there; .that she thereupon went back to the plaintiff and returned to the hotel' later in the day arid asked for ■ Mrs. Watrous,. and was shown -to a .room where she found Mrs. Ballou and the decedent; she also testified that the .Manhattan Hotel was . located on Forty-second street “ right opposite the ...Grand Central -depot'; it was-on the down town side surely.” The mistake as to the location of the hotel is- of little or no importance except when taken, in connection with other statements of the’, witness. ' It was established beyond contradiction ..that Katherine -Ballou with her sister, Mrs. Spencer, was. at the hotel during September and until about October 4, 1902,. and that she ■ was there registered and known as Mrs. Katherine Ballou, and during the Tatter- part of the time a person, presumably the decedent, also1 occupied a room i,n the hotel and was registered and known as K.. "Ballou. There was no one there at that time who was registered of known by the name of .Watrous. It is, therefore, incredible that the. witness Magill should have been informed that there was-no one by the name of Ballou at the hotel and afterwards have . found her by the name of Watrous. Thé witness also was unable
It is true there was some evidence introduced to the effect that Watrous stated at different times that he was paying for the clothes which Mrs. Ballou wore, but such statements did not necessarily imply that he was liable to pay for those purchased of the plaintiff. There can be but. little doubt that he gave Katherine Ballou the money to make these and other purchases, but there is no evidence, as I read the record, sufficient to sustain a finding that she was authorized to, or did pledge his. credit in making such purchases; indeed, her letter from which the above quotation is taken, would seem to indicate the contrary. A book kept by the plaintiff was also introduced, which it is claimed upon its face showed that the goods in question were charged to the decedent, but this does not affect the situation, because, according to the. bill of particulars, the charge to him was made by the direction of Katherine Ballou and this before the alleged promise was made.
In addition to this evidence was givén which tended in no small degree tó destroy or shake whatever confidence one might be led to place in the book by reason of the way in which it was kept and the time and manner in which the entries were made.
The plaintiff’s bill includes — and she has had a recovery therefor— an item of $2,00Q for a set of imported sable furs, consisting
The courts uniformly scrutinize claims of this character with great care and permit a recovery only in cases where the claim is established by very satisfactory evidence. The rule thus adopted is made necessary by reason of the. fact that one of the parties to the contract upon which the establishment of the claim depends is dead. • (Shakespeare v. Markham, 72 N. Y. 400; Matter of Van Slooten v. Wheeler, 140 id. 624; Rosseau v. Rouss, 180 id. 116; Apollonio v. Langley, 106 App. Div. 41; Scheu v. Blum, 119 id. 825.)
In conclusion I am clearly of. the opinion that the .evidence presented falls far short of establishing a contract or agreement, either express or implied (and' this is the only ground upon which the' plaintiff by any possibility could recover), on the part of the dece'dent to pay for" the dresses and wearing apparel set out-in the complaint, and for that reason his estate is not liable.
Ingraham, Laughlin, Clarke and Scott, JJ., concurred.
. Judgment and order reversed, new trial ordered, costs to appellants, to abide event.