
    Frank Lugar, App’lt, v. Joe A. Swayze, Resp’t.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed February 6, 1893.)
    
    1. Married women — Contract.
    Defendant, who occupied a flat with her husband, employed plaintiff to paint and decorate it, clean carpets, etc. An estimate was made in her name, but after several demands of payment plaintiff accepted the note of defendant’s husband and subsequently recovered judgment thereon. Held, sufficient to show that plaintiff looked to the husband as the debtor, and that defendant was not liable.
    3. Evidence — Payment.
    Under a plea of nil debet any fact tending to show that there was no indebtedness, such as a note given for the debt, is admissible.
    Appeal from a judgment of the general term of the city court, affirming a judgment entered on a nonsuit and affirming an order denying a motion for a new trial.
    
      William Douglas Moore, for app’lt; Palmer, Boothby & Warren, for resp’t.
    
      
       Affirming 49 St. Rep., 38.
    
   Bookstaver, J.

This' action was brought by the plaintiff, a decorator, against the defendant, a married woman, for work done in papering and decorating the flat No. 226 West Fifty-ninth street, New York, and for certain work done in cleaning carpets and in removing and packing furniture, etc. A written estimate was made out in her name by the plaintiff and sent to her by mail. Plaintiff himself testified that he knew defendant was a married woman, and in one of the interviews with him had told him she had submitted it to her husband, who thought it too high ; and there was other testimony given by plaintiff strongly tending to show that he knew that defendant had a husband living. Under such circumstances, we think it was his duty to have informed himself as to whom the flat belonged. After the work was finished plaintiff demanded payment from the defendant by mail several times, and in response to his last request he received a promissory note made by defendant’s husband for the full amount of the bill, which he accepted. When it became due and was unpaid plaintiff wrote Mr. Swayze asking for its payment, and offered to renew it for a portion of the amount if necessary. Thereafter the plaintiff sued on this note and obtained judgment' thereon in the state of New Jersey. In an action against a married woman for repairs on her house, proof that the plaintiff obtained judgment against her husband is conclusive evidence that the plaintiff looked to him as the debtor. McCausland v. King, 26 N. W. Rep., 836. Appellant contends, however, that he ought not to be concluded thereby, as the action in New Jersey was based upon the promissory note and not upon the original claim. But the original claim was the only consideration for that note, and without such consideration the note would have been void as between the parties.

As far as we are able to see from the return, there is nothing to distinguish this case from any other where the wife, as a part of her family duties, superintends and looks after the family home, seeing that it is kept in order and suitable for a family residence. If the defendant could be held personally liable in this action, there is nothing to hinder any tradesman from holding the wife liable for everything pertaining to the household which she directs to be done; and she would be liable for the hire of the household servants, who are always under her direction and selection.

The cases cited by the appellant as to the effect of judgments refer to instances where two people are severally liable for the same debt. In such case, it is true, judgment against one is no defense to an action against the other.

Appellant also contends that it was error to admit in evidence the note given by Mr. Swayze, claiming that its introduction tended to prove payment, which was not pleaded, and which should have been if he had desired to avail himself of that plea. But under the plea of nil debet any fact tending to show there was no indebtedness on the part of the defendant was admissible. Lent v. N. Y. & M. R. Co., 130 N. Y., 511; 42 St. Rep., 592. He also contends that the defendant’s motion to dismiss was not broad enough to cover the questions raised; yet it was plainly made upon the theory and contention that no claim against defendant had been proven, but, on the other hand, the proof showed that the defendant’s husband was the debtor and had been made so by the highest authority known to the law.

The judgment should, therefore, be affirmed, with costs.

Bischoff and Pryor, JJ., concur.  