
    Alfred Valois, Appellant, v. Frances Gardner, Respondent.
    Third Department,
    November 13, 1907.
    Husband and wife — agency of wife purchasing necessaries — failure to ’■ prove wife’s promise to pay.
    Where a married woman living with her husband and children purchases necessaries for family use, the presumption is that the purchases are made as agent for the husband, and that he alone is liable; but a wife may by special agreement charge herself personally for necessaries purchased by her for the family while living with her husband.
    Such special agreement, however, is not established' by mere proof that a wife living with her husband and children stated to the seller that she owned the lands upon which they lived, together with other real estate.
    Appeal by the plaintiff,. Alfred Valois, from so much of a judgment of the County "Court of St. Lawrence county in favor of the defendant, entered in .the office of the cleric of said county on the 21st day of March, 1907, as reverses a judgment of a justice of the peace of the town of Oswégatchie in favor of the plaintiff as to the first cause of action alleged in the complaint.
    
      F. K. Moreland, for the appellant.
    
      Edward P. Lynch, for the respondent.
   Chester, J.:

The appellant recovered judgment in the Justice’s Court upon two causes of action, each for goods alleged to have been sold to the defendant. The County'Court reversed the judgment as to the first cause of action and the plaintiff appeals. The defense is covert-. lire. The plaintiff swore that he sold and delivered meats to the defendant at various times; that at different dates she made payments, and that the goods were all charged to her and not to her husband. He swore on cross-examination that he knew the defendant was a married woman, and that she and her husband were living together as man and wife’ with their children during this time.

Where a married woman living with her husband and children purchases necessaries for the family use the presumption is that the purchases were made as the agent of the husband, and that he alone is liable. (Lindholm v. Kane, 92 Hun, 369 ; Wenz v. McCann, 107 App. Div. 557.)

The wife may, nevertheless, by an agreement to that effect, charge herself personally for necessaries purchased by her for the family while living with her husband. (Tiemeyer v. Turnquist, 85 N. Y. 516 Ruhl v. Heintze, 97 App. Div. 442.)

It is claimed that the defendant so charged "herself in this case. All there is upon which this claim is founded is the evidence of the plaintiff that at the time the account was started,- or at some time while it was running, lie had- a conversation with the defendant, and that she said she owned the property where she lived and" another place, and also that about a year before the trial she told the- plaintiff she owned real estate. The account appears to have been running from some time in 1904 to June, 1906. The case was tried- in September, 1906, so we have the fact that about a year before this the defendant told the plaintiff she owned real estate, and at some indefinite time she told him what it was. This falls, far short of' sufficient evidence upon which to base the conclusion that she at any time made an agreement to charge herself with the' payment of these goods.

The plaintiff also swore that they were charged to her, but there is no proof that she knew they were so charged or that she ever authorized him to charge them to her.

The judgment should he affirmed, with costs.

All' concurred, except Smith, P. J., not voting.

Judgment affirmed, with costs.  