Harrington v. Stallo

Plaintiff, who- is the divorced wife of defendant, sues to recover the sum of $7,000, with interest, upon a promissory note made by defendant. The latter pleaded, both by way of defense and as counterclaims, two- sums, aggregating upwards of $11,000, paid by defendant for plaintiff’s account during the existence of the marriage. Both counterclaims were allowed as set-offs to plaintiff’s claim; the defendant withdrawing any claim to affirmative relief. As to the allowance of one of these counterclaims the plaintiff makes no point on this appeal; the only question being as to the allowance of the other. As to this claim it appears that plaintiff, then defendant’s wife, incurred a bill with a firm of furriers amounting to upwards of $5,000 for lengthening a sable coat and for other things. The account stood in the wife’s name. After it had remained unpaid for some time, defendant was requested to pay the bill, which at first he declined to do. The defendant testified that his wife thereupon requested him to pay the bill, as she had no- money with which to pay it, and that he thereupon did pay it. He also testified that at the time his wife asked him to pay the bill she did not ask him to advance the money, and did not mention any fund out of which it was to be paid; that she “just asked me to- pay it, and I paid it.”

There was evidence from which the jury might reasonably infer that the items included in the bill were not, properly speaking, necessaries, and that the husband supplied his wife with ample funds to procure such necessaries as she might require. If this had been an action between the tradesman and the husband, the evidence would have justified a verdict in favor of the latter. Wanamaker v. Weaver, 176 N. Y. 75 , 68 N. E. 135 , 65 L. R. A. 529 , 98 Am. St. Rep. 621 ; Wickstrom v. Peck, 155 App. Div. 524 , 140 N. Y. Sup. 570. Here, however, a very different case is presented. While the husband may have been under no legal duty to pay the bill in the first instance, he did in fact pay it voluntarily, without any agreement on the part of his wife to reimburse him. This certainly raised no' implied promise on her part that she would pay it, any more than the acceptance by a wife of a present from her husband would imply a promise to pay him the value thereof on demand. In effect, what defendant did was to make his wife a present of the money which he paid, without legal compulsion, for her adornment. He certainly could not have maintained an independent action against her for the amount he paid, for there was neither an express nor an implied agreement on her part to repay it. If the claim was not one which could have been enforced in an action

The judgment and order appealed from must be reversed, and judgment directed in favor of the plaintiff for the difference between the amount due plaintiff upon tire note sued upon, with interest, and the amount of the counterclaim for $5,870.38, not questioned on this appeal, with interest, besides tire costs of the action, including the appeal to this court. Settle order on notice.

INGRAHAM, P. J., and McLAUGHLIN, CLARKE, and SCOTT, JJ., concur.

(dissenting). The set-off, in so far as it is material to sustain the verdict of the jury, relates to moneys paid by the defendant to Bergdorf & Goodman for lengthening a sable coat owned by the plaintiff. The plaintiff and defendant were married on- the 27th of April, 1903, and lived together until 1912, when she obtained a divorce. The sable coat was of the value of from $25,000 to $30,-000, and was owned by the plaintiff before she married the defendant, and at the time of their marriage she had an income from her father’s estate of $2,500 per annum, and a further income of $9,000 per annum for the benefit of herself and three children from a fund settled upon her by her former husband and his father. The plaintiff and defendant during their married life resided in apartments and at hotels in the city of New York, and for a long time at the Waldorf. The evidence offered on the part of the defendant tends to show that he gave his wife in cash an average of $10,000 per annum for her personal expenses.

The note upon which this action is predicated was given by the defendant to the plaintiff on the 2d day of April, 1908, for moneys which he had received from her. The cost of lengthening the coat was charged to the plaintiff, and, according to the testimony of the defendant, he had no knowledge or notice of this account, and did not consent thereto, and when his attention was drawn to it he remonstrated with the plaintiff, and informed her that he had told Goodman that he would not pay it, on the ground that he was not responsible therefor, and she then said to him that she had no money, and requested him to pay it, and he paid it pursuant to her request. The court instructed the jury, among other things, that if the defendant voluntarily paid the bill he was not entitled to offset it, and that if he furnished sufficient money or paid for all necessaries for his wife from time to time, and if the lengthening of the coat was not a necessity, and was made on the wife’s credit, then the defendant was entitled to be reimbursed for the amount advanced by him to pay therefor. The verdict shows that the jury found those facts in favor of the defendant, and there was ample evidence to sustain the findings. The court also charged the jury that the burden was on the defendant to show an agreement between him and the plaintiff that he should pay this account, and that he paid it upon the theory that from his wife’s request a promise arose on her part to reimburse him therefor.