
    Diedrich Blendermann, Respondent, v. Emma Mann Wray, Appellant.
    (Supreme Court, Appellate Term,
    July, 1908.)
    Account stated — What constitutes — Effect of retaining account rendered without objection.
    Husband and wife — Wife’s separate estate — Liabilities and charges — Necessaries and family supplies.
    Where a grocer furnishes to a married woman living with her husband groceries necessary for the household, he cannot establish a claim against her therefor, as upon an account stated, by sending bills to her therefor to which she makes no reply.
    Seabury J., dissents.
    Appeal by the defendant from a judgment of the City Court of the city of ¡New York, entered in favor of the plaintiff upon the verdict of a jury, and from an order denying a motion for a new trial.
    Stephen Callaghan, for appellant.
    Charles B. Larue, for respondent.
   MacLean, J.

Chiefly because he got no replies to bills he chose to send her, the plaintiff has gotten a recovery against the defendant as upon an account stated, an account for groceries, largely of the common household variety, with so much flavor of alcohol, hops and malt as to strengthen the presumption that the husband, rather than the housewife, would be looked to for payment. Without gainsaying, an account stated, like any other account, must start with a debtor as well as a creditor; for it rests upon agreement, or meeting of the minds and a promise, which may be evidenced under some circumstances by acquiescence. While a widow, the defendant had household supplies from the plaintiff down to April, 1905. Then she paid off her accounts, gave up housekeeping, married and went to Lake George. In the late autumn she came to New York with her husband to live. She called at the grocer’s; she told him that she was married and that her name was Mrs. Wray. Groceries were served to the new household, presumably to be paid for by Mr. Wray on the known obligation of the husband to provide necessaries for his household and his consequent liability therefor. So the plaintiff thought; for he dunned Mr. Wray by bills rendered against him by letters, by personal calls at his office and by telephone, again and again, month by month, down to the 31st of July and, lastly, through a letter of his attorney on August 29, 1907; and he accepted the husband’s promises to pay and his money, one time his office cheque of December 8, 1906, for $133.37, and another his cheque of April 4, 1907, for $150 handed to his wife who gave her own. By August of 1907, the plaintiff began sending the bills to the defendant, at least, there was put in evidence a registry receipt, dated August 13, 1907, of an envelope addressed to the defendant at Morristown, N. J. The plaintiff says he put the hill in that. The defendant replied not at all. Much is made thereof that the plaintiff used a pass-book in the lady’s name both before and after her marriage and that he had an account in her name. Be those incidents proof of the defendant’s indebtedness to the grocer, then a self serving ledger becomes a voucher against one who never saw it or heard of it; and the pass-book, passing between the grocery and the kitchen, proves itself because no objections came; and the cook and the scullery maid thus become auditors for the householder. This doctrine counsel for the plaintiff would make out by citing from cases relating to the passbooks of banks, written up at the request of the customers and fortified by vouchers of their own making. The analogy fails, for the written up pass-book with returned vouchers is really a reply to the direct or practical request of the bank’s customer to know the state of his account. Most of the other cases cited to sustain the judgment at bar are similarly repugnant to the case in controversy, and some of the assertions of facts in the brief are not found in the case. The judgment should be reversed unless it may be held that, in a controversy between two people, recognized as such by both and resting upon valid presumptions of law and fact, a new party may be brought in by a novation on the wish of the creditor so as to make a new way for collecting an old debt.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.

Gildersleeve, J., concurs in result.

Seabury, J. (dissenting).

The jury having found that the plaintiff originally gave credit to the defendant and not to her husband, the fact is established that the defendant is indebted to the plaintiff. The only issue, about which there has been so much litigation, is as to whether the plaintiff can recover in the present form of action which is upon an account stated. Upon the first trial of this action, the court dismissed the complaint. Upon appeal to this court, the judgment entered upon the dismissal was reversed and a new trial ordered. In its opinion reversing the judgment, the court stated: “If the jury, upon consideration of all the evidence, determine that credit was extended to the defendant, then * * * it is a question of fact for the jury to determine whether, in view of the circumstances of the case, there was an account stated. (Towsley v. Denison, 45 Barb. 490, Lockwood v. Thorne, 18 N. Y. 285.)” Upon the last trial, the justice submitted the case to the jury upon the theory stated above, in a charge to which no exception was taken. There is no legal reason why the defendant should not be compelled to pay for the groceries which the plaintiff furnished'her.

The judgment should be affirmed, with costs.

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