
    BOYNTON et al. v. SQUIRES et al.
    (Supreme Court, General Term, Fourth Department.
    February, 1895.)
    Husband and Wife—Purchase for Benefit of Wife’s Separate Estate.
    In an action for the price of paint ordered of plaintiffs by defendant’s husband, and charged to him, but used in painting buildings on defendant’s lands, it appeared that defendant was present when the painting was done. It did not appear, however, that the husband directed the paint to be charged to him. There was evidence that plaintiffs did not know that defendant owned the land. A witness for plaintiffs testified that he was hired by the husband to work on the land, and that he recovered a. judgment for his wages against both defendant and her husband. Held, that it is a question of fact whether the paints were ordered by defendant’s request.
    Appeal from Cortland county court.
    
      Action by Fitz Boynton and another against Ophelia E. Squires and E. Frank Squires to recover for goods sold and delivered. From a judgment of the county court affirming a judgment rendered in a justice’s court in favor of plaintiffs, defendant Ophelia E. Squires appeals.
    Affirmed.
    Argued before HARDEN, P. J., and MARTIN and MERWIN, JJ.
    E. E. Mellon, for appellant.
    T. E. Courtney, for respondents.
   MERWIN, J.

This action was commenced in justice’s court against the defendant and her husband, E. Frank Squires. The complaint was for goods sold and delivered. The main issue was whether the appellant was liable. There was a trial by jury, and a verdict against both defendants. The husband did not appeal. The plaintiffs were in the drug business, and the recovery was for paints and oils sold by plaintiffs at their store, and delivered to the two witnesses Galpin and Mullane in September, 1892, and taken by them onto a farm owned by the appellant, and there used in September, 1892, by the witness Galpin, in painting the buildings on the farm. Mrs. Squires became the owner of the farm in July, 1892, and she, with her husband, moved onto it in December, 1892. She was there about the buildings while the painting was being done. It may be inferred that the painting was being done preparatory to the subsequent occupancy. The husband directed the men to get the goods of the plaintiffs, and they were charged to the husband. There is evidence that the husband did not direct how they should be charged. There is evidence tending to show that the plaintiffs did not know that the wife owned the farm. The witness Mullane worked on the farm from July to December, 1892, and he testifies that he worked for the defendants, and that the husband hired him and paid him. The witness Galpin testifies that the husband hired him, and that, in getting his pay, he sued both defendants, and recovered a judgment against both.

In Cutter v. Morris, 116 N. Y. 310, 22 N. E. 451, it is said that when services are rendered for the benefit of the separate estate of a married woman, with her knowledge, the presumption is that they were rendered at her request. The same doctrine was laid down in Fairbanks v. Mothersell, 60 Barb. 406. This case was referred to, but not overruled, in the case of Jones v. Walker, 63 N. Y. 612, which is relied on by the defendant. See, also, Mackey v. Webb (Sup.) 6 N. Y. Supp. 795. In the present case, in view of the presumption referred to and of the evidence in the case, it was for the jury to say whether the painting was done at the appellant’s request, and, if so, it would then also be a question of fact whether the materials were not ordered by her request, and obtained by employés at work either for her alone or for her in association with her husband. The fact that the goods were charged to the husband did not necessarily relieve the wife, as the plaintiffs did not know of her ownership. Meeker v. Claghorn, 44 N. Y. 349; Foster v. Persch, 68 N. Y. 400. The fact that the complaint charges a joint liability does not relieve the appellant if the facts warrant a finding of individual liability. Brumskill v. James, 11 N. Y. 294; Stimson v. Van Pelt, 66 Barb. 151. As the case stands, we think that the judgment should be affirmed. Judgment affirmed, with costs. All concur.  