
    Eli Valentine, App’lt, v. Edward Applebee et al., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 13, 1895.)
    
    Principal and agent — Relation.
    The relation of husband and wife alone is insufficient to establish the fact that the husband was the agent for his wife in incurring an indebtedness for materials and labor in the erection of a house, where the debt was contracted by him upon his credit and under the belief that he was the owner, and the wife is not shown to have given him any authority whatever in the premises.
    Appeal from a judgment dismissing the complaint.
    
      Frank L. Young, for app’lt; William G. Valentine, for resp’ts.
   Brown, P. J.

The complaint in this action was dismissed as to the defendant Alice B. Applebee upon the ground that it did not state a cause of action against her. The action was brought to recover the value of materials furnished and used and labor performed in the erection of a dwelling house on property of which said defendant is alleged to be the owner. The complaint alleges that the defendants are husband and wife, and that on April 2, 1892, the property on which the house was erected was conveyed to the wife for a consideration paid by the husband.

The fifth, seventh, and eighth allegations of the complaint are as follows:

“Fifth. That, at the special instance and request of the said Edward Applebee, the plaintiff sold and delivered material and furnished work, labor, and service in the construction of a dwelling house on the said premises, between the 1st day of July, J 892, and the 1st day of January, 1893 ; and that the said material and work, labor, and service were reasonably worth the sum of one hundred and seventy-three 46-100 ($173.46) dollars.”
. “Seventh. That the said materials were furnished and delivered and said work, labor, and service rendered, to and with the knowledge of the said Alice B. Applebee, and that all said materials were furnished, and the work, labor, and service rendered, as it now appears, for the benefit of her separate estate; and that the said Alice B. Applebee interposed no objection thereto.”
“Eighth. That at the time said materials were furnished, and the work, labor, and service rendered, the plaintiff believed that the said Edward Applebee was the owner of the said premises; and that the plaintiff received no intimation, suggestion, or information from the said Alice B. Applebee or any other person that the said Edward Applebee was not the owner of the said premises.”

These facts did not create a cause of action, against the wife. Jones v. Walker, 63 N. Y. 612; Travis v. Scriba, 12 Hun, 391; Bannen v. McCahill, 30 St. Rep. 305 ; Ainsley v. Mead, 3 Lans. 116. The agency of the husband cannot be presumed; it must be alleged and proved. While the agency may be applied from facts alleged, the allegations in the complaint do not permit such implication in the case before us. The only fact upon which agency is claimed is the relation of the parties. This is not sufficient. The debt was contracted by the husband, and the plaintiff gave him credit believing he was the owner. The wife is not, alleged to have given any authority to the husband whatever in the premises, and, so far as the allegation of the complaint show, the contract was the husband’s alone. 'The case cannot be considered, therefore, as one of an undisclosed principal. While the fact may be that the husband was the wife’s agent, we must affirm the judgment, because that fact is not made to appear. If such was the fact, instead of permitting judgment to go against him and appealing, the plaintiff should have applied for leave to amend his complaint.

The judgment must bé affirmed, with costs.

All concur.  