
    LUCAS v. HESSEN.
    
      N. Y. Common Pleas; General Term,
    November, 1885.
    Action for work and materials.—Executors and administrators; LIABILITY FOR FUNERAL EXPENSES.
    An executor is not liable for funeral expenses of bis testator, although possessed of assets of the estate sufficient to pay the claim, if the funeral was ordered by and the credit given to another person.
    
      So held, where it appeared that the husband of the deceased ordered the necessaries for the funeral, and that plaintiff had collected part of his bill therefor of the husband, and obtained a judgment against him for the balance.
    Appeal from a judgment for the plaintiff, rendered upon a trial before Mr. Justice Mokell, in the seventh district court of New York city.
    The facts appear in the opinion.
    
      Adolphus D. Pape and S. S. Blake, for the defend. ants, appellants.
    
      E. Fixman, for plaintiff, respondent.
   Van Hoesen, J.

—The plaintiff, who is an under taker. furnished the necessaries for the funeral of a Mrs. Kessell, who, by her will, made defendants her executors. The defendants have assets belonging to the estate of the testatrix more than sufficient to pay the plaintiff’s bill. Having assets in their hands, the executors would, under ordinary circumstances, be personally liable to pay the funeral expenses of the testatrix (Rappelyea v. Russell, 1 Daly, 214; Patterson v. Patterson, 59 N. Y. 574; Williams on Executors. marg. p. 1624).

The husband of the testatrix was likewise liable to the undertaker, but, as the wife left assets sufficient to pay the expenses of the funeral, he could have recovered from the executors the amount that he might have paid to the undertaker (McCue v. Garvey, 14 Hun, 562; Freeman v. Coit, 27 Id. 447, 450; Jackson v. Westertield, 61 How. Pr. 399).

It appears from the testimony that the husband ordered the funeral, that he paid part of the undertaker’s bill, and that the undertaker then brought an action and recovered a judgment against him for the balance. There can be no doubt that the plaintiff gave credit to the husband alone, and having done so, has now no right to recover upon the ground that an executor having assets is always liable “in the absence of evidence to charge any other individual,” and that he is also liable when he adopts the acts of a person, who, without previously obtained authority ordered the funeral (for he thereby treats that person as his agent); but he is not liable to the undertaker when the funeral has been ordered by and the credit given to another person. That person may recover from the executor the reasonable expenses of the funeral as soon as he has paid the undertaker, but the undertaker must look to the person to whom he gave credit (Williams on Executors, marg. pp. 1622-1624).

The judgment against the defendants was, therefore, erroneous, and must be reversed.

There is some testimony in the case that fends to show that the husband was sent by one of the defendants to bring the undertaker to the house. In view of all the circumstances, we have not felt that, standing by itself, the fact that one of the defendants may have suggested the name of the undertaker to the husband—and this is what the husband may have construed into “sending him”—would warrant in holding that the husband was from the outset a mere messenger, employed by the defendants to do their bidding. But, as on a new trial it may be made to appear that the defendants were the principals and the husband a mere agent in the transaction, we have con-eluded to order a new trial, with costs to abide the event.

Larremore, P. J., and Daly, J., concurred.  