Mackey v. Webb

Maetin, J. 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 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. Telegraph Co., 45 N. Y. 549; Koehler v. Adler, 78 N. Y. 291; Lesser v. Wunder, 9 Daly, 73; Cornell v. Markham, 19 Hun, 275; Kavanagh v. Wilson, 70 N. Y. 177; Gildersleeve v. Landon, 73 N Y 609; Railroad Co. v. Strong, 75 N. Y. 591; Honegger v. Wettstein, 94 N. Y. 252; Becker v. Koch, 104 N. Y. 395, 10 N. E. Rep. 701; Manhattan Co. v. Phillips, 109 N. Y. 383, 17 N. E. Rep. 129; Munoz v. Wilson, 111 N. Y. 295, 18 N. E. Rep. 855. 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 lenew 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 N. Y. 652; Husted v. Mathes, 77 N. Y. 388. We are of the opinion that the 796 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. All concur.