4 N.Y.S. 299 | N.Y. Sup. Ct. | 1889
The sole question before the referee was whether the goods in question were sold by the plaintiff to the defendant. The evidence showed that the defendant was a married woman, living with her husband and children. That the claim was for meat used in the family from May, 1885, to August, 1886. Ordinarily the presumption of the law is that the husband is responsible for all articles needed to support his family. To rebut this the plaintiff provided evidence that in May, 1885, his clerk asked the defendant to whom the goods were to be charged, and she replied, to herself, and that they were subsequently furnished and so charged. The plaintiff furnished further proof to the effect that the defendant had made payments on the account, and had promised to pay it. The defendant was sworn in her own behalf, and she denied both allegations. It appears that the account commenced in 1882, and she says it was continued without change on her husband’s credit, and that he made all payments, and that she neither made nor promised payment. The finding of the referee cannot be disturbed. The fact that the account commenced in 1882 is of great weight. There is no reason why, in 1885, a change should be made, as the defendant’s husband failed as late as March, 1886. The judgment should therefore be affirmed, with costs.
Pratt, J. As the evidence reads in this case, a decision in favor of the plaintiff would have been more satisfactory to us, but the referee had the opportunity to see the witnesses, and hear them testify, and could judge better of their credibility than an appellate court. The only ground upon which the decision can be attacked is that the weight of evidence is against the findings of the referee, and we cannot say the evidence is so clearly preponderating in favor of the plaintiff as to warrant a reversal of the judgment. It was incumbent upon the plaintiff to prove that the minds of the parties met upon the question of the purchase being made by, and the credit given to, the defendant. The referee was clearly right in the law which he applied to the case. If the defendant purchased the meats as agent for her husband, she could not be held personally liable, but if she bought them herself, arid obtained the credit therefor, she would be liable, although she was married, and the goods were used for the family. Tiemeyer v. Turnquist, 85 N. Y. 516. The exception to the questions calling for a conversation between the defendant and her husband is untenable, as it was proper proof of agency. The exception to the question as to who sold the defendant groceries was cured by the proof afterwards put in by the plaintiff from the witness Wolf. Assuming the referee believed the testimony of the defendant, the evidence is sufficient to sustain the judgment, and the same is affirmed.
Dykman, J., dissents.
