Rundell v. Bentley — 25 N.Y. St. Rep. 59

Majority

p. 59

Winifeld S. Rundell, Resp’t, v. Alexander N. Bentley, App’lt.

(Supreme Court, General Term, Third Department,

Filed July 6, 1889.)

Headnote

Contract—When action for goods furnished for benefit of another MAINTAINABLE.

One G. conveyed to defendant all her property, the consideration therefor being that he should support her during her life. He neglected to do so, and becoming sick, in her destitution she applied to plaintiff who procured her such things as were necessary to her comfort, paying for them, and devoted his personal attention to her care. Defendant was informed that plaintiff was furnishing provisions and caring for G., but made no objection thereto. Held, that plaintiff was entitled to recover from defendant for his advances and attention.

Appeal by the defendant from a judgment of the county court of Green county, affirming a judgment of the justice’s court in favor of the plaintiff.

D. H. Dailey, for app’lt; Sidney Crowell, for resp’t.

On the 26th Rovember, 1887, Mrs. Maria S. George conveyed to Alexander R. Bentley, the defendant, the real and personal property of which she was then possessed, and as the consideration for such transfer he agreed to care for, and support her, during her natural life.. After such transfer the defendant appears to have provided for Mrs. George satisfactorily until about February 1, 1888. She was living in a house upon the farm she ■ conveyed to the defendant, and was taken sick about the 1st of February, 1888, and was. in a destitute condition, owing to the omission of the defendant to provide her with necessary food, fuel, and attendance, according' to his agreement. The weather became exceedingly cold and stormy, and the defendant omitted to visit her, and she applied to the plaintiff, in her destitution, to aid her in procuring such things as were necessary for her comfort, and the plaintiff not only provided necessary food and fuel, but devoted his personal attention to her care, as she was feeble from age, and sickness. And it was for such advances, and attention, that the recovery was had in the justices court, where the merits of the controversy were investigated thoroughly, in a trial which occupied four or five days.

We have examined the evidence with care, and are satisfied that the plaintiff established a meritorious cause of action, which, in view of all the circumstances, justified the verdict which was rendered by the jury in favor of the plaintiff. It seems very clear that the defendant omitted the performance of his agreement at a time when, considering the inclemency of the weather, and the destitute condition of Mrs. George, and the state of her health, he was called upon to exercise more than ordinary care and attention in administering to her necessities, and in performing the requirements of the contract on his part. We think

p. 60

the jury were justified, by the facts and circumstances, in concluding that the defendant was informed that the plaintiff was furnishing the provisions and caring for Mrs. George at the time, and did not object thereto. Under the circumstances, the neglect of the defendant was almost criminal. In. addition to the real and personal property which the defendant received from Mrs. George, he also received a portion of her pension money. It was, upon the trial, insisted by the defendant, that there had been a cancellation of the-agreement between him and Mrs. George, by which he became released from his obligation to provide her such supported care, and much time was occupied at the trial ini the investigation of that subject. We are convinced that the jury were justified in finding that such agreement was in force at the time the plaintiff furnished the provisions, and rendered the services, for which he recovered. The case-contains very many objections on the part of the defendant, all of which we have examined, and are convinced that the county court dealt properly with them in disposing of the appeal. Section 3063 of the Code of Civil Pro. provides t “The appellate court must give judgment according to the-justice of the case, without regard to technical errors or defects, which do not affect the merits.” This is a salutary provision, and, we think, peculiarly applicable to this case, and has been wisely applied by the county court. The merits of the controversy are, in our judgment, decidedly in favor of the plaintiff, and no errors were committed at the trial which materially affected the merits adversely to-the defendant.

The judgment should, therefore, be affirmed, with costs.

Learned, P. J., and Landon, J., concur.