
    Frederick L. Heidritter and August Heidritter, Jr., Appellants, v. Theresia Wolf, Respondent.
    
      Tenancy by the entirety — liability of such tenants for building materials used on , premises.
    
    While the evidence in this case may be slight, we think there was sufficient to ' carry the case to the jury on the question of the liability of the respondent to pay the plaintiffs’ claim, and that a nonsuit was accordingly improper. Judgment and order reversed and new trial granted, costs to abide the final award of costs.
   Hirschberg, P. J., Bartlett and Rich, JJ., concurred; Jéuks, J., read for affirmance, with whom Woodward, J., concurred.

Appeal by the plaintiffs from a judgment of the Supreme Court, entered in the office of the clerk of Richmond, county on the 22d day of October, 1903, and also from an order, entered in the same "office on the 13th day of November, 1903, denying plaintiffs’ motion for a new trial.

Jenks, J.

(dissenting): I dissent. This action, to recover the value of building materials used in the construction of a house, was begun against husband and wife, and j ndgment on default was entered against them. The j udgment was opened for the wife, who answered, and whose motion for a nonsuit, made at the close of the 'plaintiffs’ case, was granted. The evidence is tlyit the transaction was between plaintiffs and the,husband, with whom there had been previous dealings; that nothing was said to the plaintiffs as to any ownership by the wife of the premises whereon the house was to be built; that, the plaintiffs were ignorant of her interest in the land until after they sought to collect their bill, and that the material was charged to the account of the husband. An employee of the plaintiffs testified that when he brought the material to the premises and told the defendant of his errand, she said, “ Very well; if it belongs to me, you can lay it off here;” that when he sought her to sign the ticket he did not find her, but the husband signed it. Another employee testified that when he brought lumber to the premises the defendant told him to leave it. The builder of the house testified that the defendant ordered some alterations or changes from time to time, and once prevailed over her husband in her wish for an alteration. There was no other evidence, save as to certain admissions of the defendant, which I shall consider later. I think that the evidence was not sufficient to make a prima facie case as' to the agency of the husband. (Snyder v. Sloane, 65 App. Div. 543, and authorities cited.) The mere fact that the wife was a tenant by the entirety with the husband (Bertles v. Nunan, 92 N. Y. 152), with such rights as are defined in Hiles v. Fisher (144 id. 306), was not sufficient to establish a prima facie case of her liability. ■ Even proof of her sole ownership of the land would not establish a prima facie case of her liability, under the circumstances. (Snyder v. Sloane, supra ; Norton v. Norton, 17 N. Y. St. Repr. 487; Bannen v. McCahill, 30 id. 305, 307.) The plaintiff Frederick L. Heidritter further testified that he once saw the defendant alone as to payment: that she then pleaded for more time and “said that she would pay. They'were going to pay she said and Mr. Wolf had been sick. She pleaded for more time and wanted me to wait longer.” In Travis v. Scriba (12 Hun, 391) the defendant, a married woman, owned a farm, but was absent in Florida when certain trees were purchased by the husband and set out. The. plaintiff testified that he was introduced by the husband to the defendant as the man that sold them the trees, and that afterwards when he called to collect his pay the defendant, in the absence of her husband, said “ she did ¿lot have the money then but if he would leave the bill she would send the money to his son’s office.” Thé court, per Gilbert, J., said: “It is not enough that the, trees were purchased for the purpose of improving her separate estate. The law does not forbid a purchase by the husband on his own account for that purpose. If the evidence was sufficient tp shoiv that the trees were in fact purchased for the wife, although such purchase'was made in the husband's name and,without any antecedent authority from the wife, yet her promise to pay the price might be deemed a ratification of his act.and as such equivalent to a prior . authority. The purchase being for the benefit of the wife's estate: a very slight matter would serve to prove a ratification, and the promise of ike wife to pay no doubt is sufficient for that purpose. (Coml. Bk. of Buffalo v. Warren, 15 N. Y. 577.) But where a husband, who is Supposed to have acted-for his wife'in making á purchase, did not so act but acted for himself^ there is nothing to ratify. The - promise' of the wife is one to answer for the debt of her husband, and being verbal merely, if otherwise valid, it would still be within the Statute of Frauds .and void. But the fact that the substantial benefits of the purchase by the husband accrued to the wife furnishes no consideration for her promise... Shé was under no moral obligation to pay for chattels bought by her husband and pdt upon her farm" without her procurement, and, therefore, the principle decided in Goulding v. Davidson (26 N. Y. 604) is not applicable to this case.’,’ I think that this authority is applicable to this case. The plaintiffs called Hr. Zuckerman, who testified that’at his office he had some conversation with the defendant .Theresia ■ Wolf and her husband regarding the claim which the plaintiffs- Ynade againstthem, and that they made a statement to him with the request that he communicate, it to the plaintiffs’attorneys. By" the court: “ Q. What did they say ? A. They asked me to "go to Hr. Greene with the purpose — Q. Not the purpose;, what did" they say-? A. To see if I could effect a settlement of the Heidritter" Claim and thereupon— Q. You have answered it. What did they tell you to say to him ? Have you answered that ?. A. Yes. Mr: Innes (defendants counsel):': I move that that afiswcr be stricken, out. [Motion granted. Exception by plaintiffs.] .By Mr. Greene: Q. Did they state to you that you should make any offer" to the plaintiffs’ "attorney, any offer in money ? [Objected to as incompetent,^ immaterial and irrelevant and because it involves a privileged communications made by a client to an attorney. Objection sustained. Exception. | Q. Did they state to'you that you should state or represent to the plaintiffs’ attorney that this .property now belonged to Mrs. Wolf alone and that (sic) would place a mortgage upon the same arid .out of the proceeds of the mortgage she would pay this claim ? [Same objection, 2'uling and exception. ] ” I find no error in the rulings.' In the first place, in the words of Bartlett, J., in Tennant v. Dudley (144 N. Y, 504, 507): “ The rule is well settled that no advantage can be taken of .offers-made by way of compromise; that a party may, with impunitjr, attempt to buy- his' .peace.” ' (See, too, Smith v. Satterlee, 130 N. Y. 677.) It is insisted that there is no proof that Mr. Zuckerman was an attorney at law. The" court can take judicial notice thereof. (17 Am. <& Eng. Ency. of Law [2d ed.].„ 924, and authorities cited; 1 Rice Ev. 16; Chase’s Steph. Dig. Ev. 119, ,n. 5.) Woodward, J., concurred. -. • 
      
      See 2 R. S. 135, § 2, subd. 2, as nmd. by Laws of 1863, chap. 464, and revised in Pers. Prop. Law (Laws of 1897, -chap. 417), §'21, su'bd. 3.—[Ref,
     