
    KESSLER v. HESSEN.
    
      N. Y. City Court, General Term ;
    
    
      April, 1887.
    
      Liability of executors to person paying funeral expenses.] Where the husband incurs and pays the funeral expenses of his deceased wife , to a reasonable amount, he has a remedy over against the executors of the deceased for the sum so paid, if they have sufficient assets in their hands.
    
    Appeal by the plaintiff from a judgment entered upon the dismissal of the complaint upon a trial before the court without a jury.
    Charles L. Kessel brought this action against John C. Hessen and another to recover the sum of $138, that being the amount paid by the plaintiff for the funeral expenses of his deceased wife. Upon her death, plaintiff employed an undertaker to conduct the funeral in a manner suitable to her condition in life. Plaintiff paid $30 on account of the undertaker’s bill of $138, and was sued for the balance of $108, and judgment recovered against him which he paid (Lucas v. Hessen, 17 Abb. N. C. 271).
    The defendants were named as executors by the will of the deceased. They qualified, and took into their possession assets belonging to the deceased more than sufficient to pay all her debts, including such funeral expenses. Plaintiff brought this action to recover the sum of $138 so paid by him.
    The case came on for trial before the court without a jury, a jury trial having been waived, and at the close of plaintiff’s evidence the trial justice dismissed the complaint, upon the ground that no cause of action had been shown. From the judgment entered upon the dismissal plaintiff took this appeal.
    
      Ezekiel Fixman, for the plaintiff, appellant.
    
      Adolphus D. Pape (Blake & Sullivan, attorneys), for the defendants, respondents.
    
      
       A married daughter can bind herself for funeral expenses of a deceased parent. Robinson v. Bair, 16 Weekly Notes, 57 ; and see 1 Pa. S. C. Dig. 76.
    
   McAdam, Ch. J.

Executors having assets in their hands are personally liable to pay the funeral expenses of the testatrix (Rappelyea v. Russell, 1 Daly, 214; Patterson v. Patterson, 59 N. Y. 574, 585 ; Williams on Ex'rs, 1621 ; Dayton on Surr. 453 ; Matter of Miller, 4 Redf. 303 ; Ferrin v. Myrick, 41 N. Y. 315). The husband is likewise liable to the undertaker, if credit for the funeral be given to him (Lucas v. Hessen, 17 Abb. N. C. 271); but if the wife leave assets sufficient to pay the expenses, the husband has a remedy over against her executors for the amount he is obliged to pay (McCue v. Garvey, 14 Hun, 562 ; Jackson v. Westerfield, 61 How. Pr. 399 ; Freeman v. Coit, 27 Hun, 447, 450).

The foundation of the remedy over, springs from the duty which the law imposes on the executors to attend to the burial of the testatrix. If they neglect this duty, the law implies a promise to pay him who, not officiously, but in the necessity of the case, directs a burial and incurs and pays such expense thereof as is reasonable (Tugwell v. Hayman, 3 Camp. 298, cited with approval in Patterson v. Patterson, 59 N. Y. 574, at p. 583). This being the law, the plaintiff ought to have had a judgment, and it was error to dismiss his complaint. For this error the judgment will be reversed and a new trial ordered, with costs to the appellant to abide the event.

Nehrbas, J., concurred.  