Parsons v. Hughes — 42 N.Y. St. Rep. 911

Majority

p. 911

Frances E. Parsons, Resp’t, v. Edward Hughes, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 14, 1891.)

Headnote

1. Pleading—Action for board and lodging.

A recovery for rent of a room kept for defendant during long absences may be had under a complaint alleging a balance due for “board and lodging.”

:2. Evidence—Settlement.

Where it is claimed that plaintiff’s bill for board was allowed in a settlement of a debt due by her husband to defendant, it is proper to allow the plaintiff, after testifying that she was present at such settlement, that her husband was not authorized to take less than the full amount of the bill and that defendant refused to allow it, to answer a question as to whether she thought her bill was paid at that time.

Appeal from judgment in favor of plaintiff, entered on verdict

Maurice Dillon, for app'lt; Fred. Wm. Sherman, for resp’t

The plaintiff is a married woman and lives -with her husband. The defendant boarded at the house where plaintiff and her husband lived. The plaintiff gave evidence tending to show that she kept the boarding house on her own account and that the defendant boarded with her 1,336 days, which was worth one dollar per day. There was proof that the defendant had a room which was kept for him during absences, and •some washing was done for him. The objection to the proof of the room rent was not good. The complaint claims for board and lodging. There is a sufficient averment to recover for a room when no board was furnished. The plaintiff’s husband had borro wed money of the defendant, and these loans were sued and paid by money and mortgages. The receipt given to the husband waived the claim for board. The plaintiff gave proof tending to show that the charge of one dollar a day was reasonable. The defendant testified that he paid what was due for board by credit upon the borrowed money, and that the entire claim was released beyond the ninety-three dollars which was allowed to the plaintiff’s husband upon the settlement; that this settlement was made ■with plaintiff’s assent.

The plaintiff’s husband testified that no credit for board was made upon the settlement for the notes. That he had his wife’s rossent to an application of the board bill upon the account, and that

p. 912

the defendant refused to make the offset because the business of boarding house belonged to the plaintiff. The case was given to the-jury under a charge which fairly presented the issues between-the parties. _ What was the value of the board and lodging? Was it paid in whole or in part to the plaintiff ? Was it allowed to the plaintiff's husband upon the settlement of the notes ?

The jury found in favor of the plaintiff for the amount she claims to be the balance due her. This appeal is but a reargument of the case upon the facts which were passed upon by the jury. The questions put to the plaintiff, whether she thought her bill was paid at the office where her husband’s debt was settled,, was not eiToneous. It appeared that there was a receipt given by plaintiff’s husband in the settlement which was claimed to include the plaintiff’s board bill. The plaintiff had testified that she was-present; that the defendant refused to allow the bill; that she; never authorized her husband to take less than the full bill, and she did not think that the board bill was being paid at any time.

The conclusion of the jury is well supported by the evidence- and the judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.