Janz v. Schwender , 159 N.Y.S. 200 ( 1916 )

Bijur, J.

Plaintiff sued on four causes of action. The first is for board supplied by his wife to the deceased for two periods of nine and' two weeks, respectively, of the reasonable value of twelve dollars a week. The second is for services of his wife rendered to the deceased as nurse for a brief period. The third is for a loan of twenty dollars to the deceased. The fourth is for services rendered by one Louisa Webber as nurse and laundress for approximately two weeks. Plaintiff recovered in full. He attempts to sustain his recovery on the first three causes of action by virtue of his marital right thus at the same time justifying the admission of testimony of his wife as to transactions by her with the deceased. He attempts to‘support his recovery in the fourth cause of action by a written assignment from the husband of Louisa Webber, thus also justifying her testimony as to transactions with the deceased..

Appellant contends that section 60 of the Domestic Relations Law gives the respective wives the exclusive cause of action for the services rendered, and that plaintiff derived no cause of action from the marital right; it would then follow that the evidence given by the wives was of persons interested in the event and thereby inadmissible under section 829 of the Code of Civil Procedure. This contention is plainly good as to the services of the plaintiff’s wife as nurse, set forth in the second cause of action, services unquestionably rendered upon her own account and by no means to be considered to have 'been rendered in the course of her marital duty to her husband. The same reasoning, of course, applies to the services rendered by Louisa Webber, constituting the fourth cause of action.

So far as the third cause of action is concerned, being a loan of twenty dollars, the evidence is that plaintiff’s wife loaned the money, and there is nothing to show •that the money was not her sole‘property, and, therefore, no question of marital right is involved.

As far as the first cause of action is concerned, involving board for a period amounting in all to some eleven weeks, on the state of the record judgment for the plaintiff cannot be sustained. It does not appear who paid for and provided the food which was served to defendant. Nor does it clearly appear that the food was served in plaintiff’s home, though such was probably’the case. Should testimony be given on a new trial to that effect, plaintiff could probably recover on his first cause of action in accordance with the principle of Stamp v. Franklin, 144 N. Y. 607, since such services would not have' been rendered by the wife in her separate'capacity, but rather in the course’of her marital relationship; that is to say, serving food purchased by her husband in his home to his boarders. See also Stevens v. Cunningham, 181 N. Y. 454.

For these reasons the judgment must be reversed and a new trial ordered, with thirty dollars costs to ¡appellant to abide the event.

Guy and Cohalan, JJ., concur.

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide event.