
    Abraham Frank, Respondent, v. Berson Lockhart, Appellant.
    Appeal from a judgment of the Municipal Court of the city of Hew York, seventh district, borough of Manhattan.
    G. L. F. Rohan, for appellant.
    T. A. McCarthy, for respondent.
   Blanchard, J.

This action was brought to recover the sum of $70.10 balance due on account for goods sold and delivered. It appears that the account in question was opened by defendant’s husband and continued by him for some time, and about this first day of February, 1900, he ceased to do business owing plaintiff the sum of $141.60. On the thirteenth day of February following, the defendant began business on her own account, practically continuing the business formerly carried on by her husband. She applied to the plaintiff for goods and he sold them to her upon the understanding that she would pay the balance owing by her husband. He sold her on two weeks’ credit, and her first payment fell due on February twenty-seventh. The plaintiff testifies, and it seems to be borne out by the evidence in the case, that the defendant did pay him $120 before the first payment on her own account fell due. An open account, between the parties, continued for several months thereafter. When the defendant subsequently paid moneys on account, the plaintiff appropriated them to the payment of that portion of the account which had stood longest, and in that way the indebtedness of the husband was all paid, and this action was brought to recover the balance due for goods bought by the defendant for use in her own business. The sum claimed was fairly due, and as the disputed questions of fact were decided by the trial court in favor of the-plaintiff, it follows that the judgment should be affirmed, with costs.

Andrews, P. J., and O’Gorman, J., concur.

Judgment affirmed, with costs.  