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Blendermann v. Mann-Wray

108 N.Y.S. 700 Court N.Y. App. Term Decision date 1908-02-07 English

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p. 700
BLENDERMANN v. MANN-WRAY.
(Supreme Court, Appellate Term.
February 7, 1908.)

Headnote

Husband and Wife—Actions Against Wife—Evidenoe.
In an action against a married woman, the fact that plaintiff had demanded payment from her husband is a circumstance to be considered in determining to whom credit was extended.
Appeal from City Court of New York, Trial Term.
Action by Diedrich Blendermann against Emma Mann-Wray. Erom a judgment for defendant on the dismissal of the complaint, plaintiff appeals. Reversed, and new trial ordered.
Argued before GIEDERSEEEVE, P. J., and SEABURY and GERARD, JJ.
Charles Ea Rue, for appellant.
Stephen Callaghan, for respondent.

In our judgment the learned court below erred in dismissing the complaint. The evidence was sufficient to warrant the submission to the jury of the question as to whether the plaintiff had given credit to the defendant. The fact that the plaintiff demanded payment from the present husband of the defendant was a circumstance which the jury had a right to consider in determining as to whom credit was given. If the jury, upon consideration of all the evidence, determine that credit was extended to the defendant, then, under the authorities, it is a question of fact for the jury to determine whether, in view of the circumstances of the case, there was an account stated. Tousley v. Denison, 45 Barb. 490 ; Lockwood v. Thorne, 18 N. Y. 285 .

The judgment appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

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