
    Joseph B. Cousins and Thomas Cousins, Copartners, Doing Business under the Firm Name and Style of J. & T. Cousins, Respondents, v. Frank Woodruff Boyer, Appellant.
    Second Department,
    July 24, 1906.
    Sale of goods to infant—when complaint does not warrant recovery against parent for necessaries —weight of evidence.
    A complaint to recover the value of goods sold to the infant daughter of the defendant which does not allege that they were necessaries, but merely that the infant bought the goods with authority to pledge the credit of the defendant, and that the goods were sold on the credit of the defendant, does not warrant a recovery on the ground that the goods were necessaries.
    The evidence does not warrant a finding that the defendant authorized the sale when it appears that on the plaintiff’s telephoning to the defendant’s house his son answered and stated that his father was in matrimonial difficulties, and that the sale would be made at the plaintiff's risk.
    Appeal by the defendant, Frank Woodruff Boyer, from a judgment of the Municipal Court of the city of New York in favor of the plaintiffs, entered in the office of the clerk of said court on the 28th day of December, 1905.
    
      J. Stewart Ross, for the appellant.
    
      Beyer & Weldon, for the respondents.
   Woodward, J.:

The complaint alleges that the plaintiffs between the 13th day of October, 1904, and the twelfth day of December of the same year supplied, furnished and delivered to one Adele Boyer, an infant daughter of the defendant, certain goods, wares and merchandise, consisting of shoes, slippers and other foot wear of the reasonable and agreed value of sixty dollars and sixty cents, for which the defendant had promised to pay. There is no allegation that these shoes, slippers, etc.,were necessaries, or that the said Adele Boyer stood in need of such articles at the time of their purchase and delivery, but it is alleged that she bought these goods with full authority to pledge the credit of the defendant for the same, this allegation being made on information and belief, and that the goods were in fact sold and delivered on the credit of the defendant.

We are fully persuaded that under the complaint the plaintiffs could not recover for these goods upon the theory that they constituted necessaries (Manning v. Wells, 85 Hun, 27), and the defendant denies any authority on the part of the said Adele Boyer to pledge his credit for the articles purchased, and the evidence, it seems to us, is insufficient to establish such authority. The plaintiffs admit knowing at the time these purchases, or some of them, were made, that there was a matrimonial difficulty in the defendant’s family, and that a notice had been published warning people against trusting the wife on the husband’s account, and the pretended authorization of the credit to the daughter is based upon a conversation by telephone with the defendant’s office. The defendant’s son testifies that the conversation was held' with him; that he stated the situation and told the plaintiffs that they would have to take their chances; the plaintiffs contend that they were told that they were talking with the defendant, and that he authorized the credit, but this is denied by the defendant, who says he had no conversation with the plaintiffs, and the facts and circumstances detailed in the evidence are such as to convince us that the weight of evidence is against the plaintiffs’ contention, and that the judgment proceeds rather upon the theory that the plaintiffs ought to have pay-for the goods sold to the daughter than upon a determination of the question of whether the credit was authorized. The plaintiffs appear to have proceeded in a measure upon the fact that goods which had been previously delivered to the daughter had been paid for, but it was shown by the defendant that the other purchases were paid by a check-signed by the mother, which obviously did not indicate any authority to charge the father for the goods in suit. If they relied upon this authority, the reason assigned for the telephone conversation is hardly satisfactory, and upon the question of the telephone authority, it seems clear from a reading of the evidence that the plaintiffs have failed to establish the authority necessary to charge ■the defendant.

The judgment appealed from should be-reversed and a new trial granted, with costs to abide the event.

Jenks, Hooker, Gaynor and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  