May v. Josias

GUY, J. [1] In this action to recover the agreed price of a dress furnished by plaintiffs to defendant the plaintiffs gave evidence in support of tile alleged cause of action, and it also appeared as a part of their case that the defendant was a married woman living with her husband. Defendant’s counsel thereupon moved to dismiss the complaint on the ground that the presumption is that defendant’s husband, and not the wife, is responsible; but the court denied the motion and granted judgment for plaintiffs. This ruling was wrong. Apparently the dress was a necessary; and in such case, in the absence of any contract on the part of the defendant that she alone should be liable, or of proof that the husband [821] had already supplied her with an article of the same character, or the cash to pay for it, or had notified the plaintiffs not to give her credit, the presumption is that she contracted as agent for the husband and that he is liable for the debt. Baccaria v. Landers, 84 Misc. Rep. 396, 146 N. Y. Supp. 158; Wanamaker v. Weaver, 176 N. Y. 75, 68 N. E. 135, 65 L. R. A. 529, 98 Am. St. Rep. 621; Matter of Totten, 137 App. Div. 273, 121 N. Y. Supp. 942. [2] Respondents claim that the judgment should be affirmed because the defense of coverture was not pleaded; but there is no question of pleading presented, for, as before stated, it appeared, when plaintiffs closed their case, that the defendant was a married woman living with her husband. Judgment reversed, and new trial ordered, with $30 costs to appellant to abide the event. All concur.