Warner v. Miller — 20 N.Y. Sup. Ct. 654

Majority

p. 654

IRENA M. WARNER, Administratrix, etc., of JOEL B WARNER, Deceased, Appellant, v. MARIA MILLER Respondent.

Headnote

Bspavrs to boat — liability of own&r for — when wedit gimen to captain.

Plaintiff’s intestate made repairs upon a canal boat owned by tlie defendant, in pursuance of orders received from the captain of the boat. Subsequently, the captain paid to the plaintiff a portion of the bill, and gave his note for the balance. The plaintiff, without returning the note, brought this action after its maturity against the defendant.

Held, that the acceptance of the note of the captain, without explanation, was sufficient to show that the credit was given to him, and not to the owner, and that plaintiff could not recover.

Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.

S. W. Dada, for the appellant.

Pardee <& Piper, for the respondent.

In August, 1874, the defendant was owner of the canal boat “E.' S. Pardee,” of Fulton. Jerofne E. Miller, the defendant’s husband, was the master of said boat. By the direction of the captain, plaintiff’s intestate made repairs on said boat to the amount of seventy dollars and sixty-three cents.

In December, 1874, the captain paid to the plaintiff, the administratrix of the estate of her late husband, twenty-five dollars upon said bill and gave his note for forty-five dollars and sixty-three cents, the balance of said bill, payable eight- months after date with interest. Plaintiff held said note at the time of the trial and no part of it has been paid.

This action is brought to recover of the defendant the amount of the unpaid balance of the repairs. The cause was tried by the court, without a jury, who found the foregoing facts and ordered judgment in favor of the defendant dismissing plaintiff’s complaint.

p. 655

From tbe judgment entered pursuant to tbe direction of tbe court tbe plaintiff appeals.

Tbe defendant was owner of tbe boat and as sucb was liable for repairs made upon ber by direction of tbe captain. (Abbott on Shipping, 132 and notes, and cases cited.) When it is shown, however, that tbe repairs were made on tbe credit of tbe captain alone tbe owner is not liable. (Cox v. Reid, 12 E. C. L., 342; Baker v. Buckle, 17 id., 515; Jennings v. Griffiths, 21 id., 700; James v. Bixby, 11 Mass., 34 .) And taking tbe note of the' captain for tbe amount of tbe repairs is sufficient evidence of that fact. (Abbott on Shipping, 133, note 111, and cases cited.) Tbe note in sucb case is not considered as payment of tbe debt so as thereby to discharge tbe owner, but solely as evidence that tbe work was not done on tbe credit of tbe owner.

Tbe judgment must be affirmed.

Present — Mullet, P. J., Talcott and Smith, JJ.

Judgment affirmed.