Whelen v. Halcomb , 42 N.Y.S. 1135 ( 1896 )

Van Wyck, Ch. J.

The plaintiff’s alleged cause was for services as a dressmaker and for materials used in making dresses for ' defendant’s wife, at his request, between September, 1894, and January, 1896, and the account between plaintiff and defendant, marked,in evidence by defendant’s consent, shows that between' said dates he was charged with twenty-six items for dressmaking for his wife, aggregating $1,377.29,' and was credited with twelve payments on account-thereof aggregating-$707, leaving an unpaid balance of $670.29. It is in proof, and defendant admits that he was willing that his wife should order dresses, for which he was originally liable to plaintiff, down to and including the items charged in the account in July, 1895, but that defendant then gave notice to the plaintiff that she must not do any work, dressmaking, for his wife oñ his adcount. So defendant, conceding his liability . for items so charged, made dispute at trial as to the items charged on the account subsequent to July, and these subsequent items were for' three (3) dresses made for his wife and for certain repairing and altering of dresses for -her. The plaintiff admitted that defendant -had then instructed her not to furnish anything more to his wife, except upon his authority, and she testifies that the items subsequent to July were furnished upon his express request, and that he repeatedly promised to pay the balance as shown by the account, and plaintiff’s bookkeeper testified that when she. asked the defendant for payment of the balance, he said to her that he had no work and was uñablé to pay her, and that he then told plaintiff, “ I told you not to make my wife any more dresses,” and she said to him, “ Tour instructions were afterward rescinded,” and he said, “ I admit that, I like to see her well dressed,- and I like to have her have nice clothes.” ‘ However, the defendant, at trial, denied that he had ever rescinded his instructions not to supply his wife except upon his authority, and that- he had himself ordered any of the items. charged. The case was properly sent to the jury to determine the disputed questions of fact, and their verdict for plaintiff will not be set aside.

Judgment and order affirmed, with-costs.

O’Dwyer, J„ concurs.

Judgment and order affirmed,- with costs.