Kiely v. McMillen — 36 N.Y.S. 335

Majority

p. 335

KIELY et al. v. McMILLEN.

(Supreme Court, General Term, Third Department.

December 3, 1895.)

Headnote

Action on Contract—Sufficiency of Evidence.

In an action to recover for the construction of a hydrant and drain, under a contract made by defendant’s husband, the plaintiffs failed to show that the husband was authorized to make the contract, or that the work was actually done under it, or that defendant owned the premises on which the hydrant and drain were placed. Heldi, that a motion for a non-suit should have been granted.

Appeal from Albany county court.

Action by Jeremiah Kiely and another against Mary H. McMillen to recover for work and materials furnished by plaintiffs to defendant under a contract made by defendant’s husband. There was a judgment in favor of plaintiffs, and defendant appeals.

Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

J. W. Ecker, for appellant.

George T. Kelly, for respondents.

The testimony offered by the plaintiffs before the justice was clearly insufficient to sustain the judgment. It was not shown that defendant was the owner of the premises on which the plaintiffs made the drain and placed the hydrant for which they sought to recover in the action. Nor did it appear that defendant’s husband was authorized by her to enter into the contract with plaintiffs under which they claimed. It was not shown whether the account set out in the complaint was charged or the bill thereof made out to defendant or her husband, and the receipts read in evidence failed to show the liability of defendant, as one of them acknowledged the payment of $50 by defendant’s husband on account, » and the other $12 by defendant on account. Again, the plaintiffs neglected to prove that they had laid the new drain and made the repairs entitling them to payment of $82.50 under their contract with defendant’s husband. We think an opinion in-the case is unnecessary. In the absence of testimony to sustain plaintiffs’ alleged cause of action defendant’s motion for a nonsuit should have been granted,. and hence the judgment of the county court should be reversed, with costs of this appeal, and the judgment of the justice’s court should also be reversed, with costs of the court below. All concur.