C. Ludwig Baumann & Co. v. Burman

Judgment unanimously reversed upon the law, and new trial granted, with thirty dollars costs to appellant to abide the event. The action is for goods sold and delivered, consisting of furniture and house furnishings. At the time they were ordered and delivered respondent and his wife were living together. A presumption, therefore, arose from those facts that when she bought necessaries consisting of the house furnishings she did so as the agent of her husband, and, in the absence of proof that the latter had already supplied his wife with articles of the same character as those *315purchased, the husband is liable for the debt. The court, therefore, erred in dismissing the complaint. (Loeser & Co., Inc., v. Lindbeck, No. 207, April term, 1926 [not reported], and cases cited; Altman & Co. v. Durland, 185 App. Div. 114, 118.) The fact that the account was opened in the wife’s name does not establish, as a matter of law, that credit was given exclusively to her. (Baccaria v. Landers, 84 Misc. 396; Bendel, Inc., v. Edeaon, 125 id. 433; Best & Co. v. Cohen, [Sup.] 174 N. Y. Supp. 639.)

Present, Cropsey, Lewis and Bonynge, JJ.