Aldrich v. More , 26 N.Y. St. Rep. 964 ( 1889 )

Pratt, J.

The judgment rendered by the referee was fully sustained by the evidence. There are no errors of law brought to our attention sufficient to warrant setting aside the judgment. The defendant is clearly liable personally. It is clear that an action could not be sustained against the defendant in her representative capacity. Thacher v. Dinsmore, 5 Mass. 300. But aside from the fact that the referee had the advantage of seeing the witnesses and hearing them testify, and could better judge of their credibility than an appellate court, we cannot see how any injustice could have been done, except in determining the amount of the payments. That the plaintiff rendered the services, and that they ought to be paid for, there can be no doubt, and the defendant, being the natural guardian of the two minor daughters, was bound to support them. It was immaterial to the plaintiff from whence the funds to pay for her services came. It is disclosed here that it was the duty of the defendant, as guardian of the children, and as having them in her care and custody, to support and educate them, If it had been the intention of the father to make the estate of the infants the primary debtor, we must assume that it would have been accomplished by proper papers to effect the result. There is no evidence that such was the intention of the plaintiff, and the defendant has utterly failed to protect herself in this matter. It does not appear that the referee has made any mistake in determining the amount of the payments made on account. If the estate of the infants is ample, it will eventually reimburse the defendant. If there was no estate, it was a fraud upon the plaintiff to attempt to obtain services upon a credit that was known to be worthless. . It is not a little significant in this connection that when the defendant settled her guardianship for the two young ladies no mention is made of any claim of the plaintiff. On the whole case we think the judgment should be affirmed, with costs.