Mackey v. Webb — 25 N.Y. St. Rep. 308

Majority

p. 308

Henry Mackey and John Banks, Resp’ts, v. Julia A. Webb, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed July 20, 1889.)

Headnote

~1. Married woman — When liable eor work done on her separate PROPERTY.

Where a married woman is present while work is being done upon her separate property at the request of her husband and makes no objection thereto, "but consults with her husband as to the work and place, such facts raise an implied promise on her part to pay therefor and will support a judgment against her.

:2. Same—Evidence—Weight' oe.

"Where the defendant’s husband testifies that she did not authorize him to have the work done, the question as to what credit should be given to this evidence is for the jury to determine.

Appeal from a judgment of the Jefferson county court affirming a judgment rendered by a justice of the peace -on the verdict of a jury, in favor of the plaintiffs against the defendant.

E. P. Webb, for app’lt; E. C. Emerson, for resp’ts.

Whether the evidence was sufficient to justify the jury in finding that the labor and materials furnished by the plaintiffs were furnished to the defendant, .and in holding her liable therefor, is one of the questions presented on this appeal. The work and materials were furnished at the request of the defendant’s husband. Nothing was said between the plaintiffs and defendant’s husband as to who was to pay therefor. The plaintiffs were employed in making improvements on the defendant’s separate property. The defendant was present when the work was performed and materials were furnished, and

p. 309

made no objection. She at one time cautioned them about placing stone upon her garden, and she and her husband consulted together about the work and plan of the improvements to her house.

The defendant’s husband testified that his wife did not authorize him to have the work done or the materials furnished. The jury evidently did not give credit to this evidence. The question as to what credit was to be given to this evidence was for the jury. Elwood v. Western Union Tel. Co., 45 N. Y., 549 ; Koehler v. Adler, 78 id., 291; Lesser v. Wunder, 9 Daly, 73 ; Cornell v. Markham, 19 Hun, 275 ; Kavanagh v. Wilson, 70 N. Y., 177 ; Gildersleeve v. Landon, 73 id., 609; Brooklyn Crosstown R. R. Co. v. Strong, 75 id., 591; Honegger v. Wettstein, 94 id., 252; Becker v. Koch, 104 id., 395; 5 N. Y. State Rep., 688; President and Directors of the Manhattan Co. v. Phillips, 109 N. Y., 383 ; 16 N. Y. State Rep., 199; Munoz v. Wilson, 111 N. Y., 295 ; 19 N. Y. State Rep., 372.

Hence the question is, whether the other evidence in the case was sufficient to uphold the verdict. In the case of Fairbanks v. Mothersell ( 60 Barb., 406 -408), which was a case very similar to this, the court said : ‘ ‘ The case stands simply upon an employment of plaintiff by the husband to work for his wife on her separate property, without any express agreement whether he should be paid by the husband or wife. The defendant knew the plaintiff was at work there, and saw the kind of work he was doing, and the law will imply a promise on her part to pay for the services if it was, in fact, her work.” This question was held to have been rightly decided in that case in Perkins v. Perkins ( 7 Lans., 27 ; 62 Barb., 539 ). See, also, Fowler v. Seaman ( 40 N. Y., 592 ), Garretson v. Seaman (54 id., 652 ), Husted v. Mathes (77 id., 388). We are of the opinion that the authorities cited justify us in upholding the judgment appealed from.

We are also of the opinion that the evidence was sufficient to sustain the judgment for the amount recovered As no other errors are claimed by the appellant, we think the judgment should be affirmed.

Judgment of the Jefferson county court affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.