
    Eva R. Murphy and Mary Gaylord, Respondents, v. M. Louise Holmes, Appellant, Impleaded with Mary B. Butterfield.
    
      Infant—recovery against, in an action on a promissory note, for the reasonable value of necessaries — duty of the father or guardia/n to suppm't an infant — necessaries furnished on the credit of the father or guardians— praof required of one seeking to charge the infant—theory of an inf ant’s liability — admission in an infant’s answer.
    
    When the averments of a complaint, in an action brought against an infant and her general guardian upon a promissory note made by the infant and indorsed by the general guardian, and given in payment for necessaries furnished by ' the plaintiffs to the infant, are sufficiently broad to permit a recovery against ■ the infant, not upon the note, but for the reasonable value of the necessaries furnished to the latter, considered.
    The obligation to support, maintain and educate an infant rests upon the father of the infant when the father is financially able to discharge such obligation. , If the parents of the infant are dead the duty to support, maintain and educate the infant devolves upon the general guardian of the infant, and the amount expended by the general guardian for such purposes may be charged against the estate of the infant.
    Where necessaries are furnished to an infant upon the credit of the parent, or ' under contract with the parent or general guardian of such infant, no liability is established against the infant, even though the latter has a separate estate.
    A party seeking to charge an infant with liability for the reasonable value of necessaries furnished to such infant, must prove, as á part of his affirmative case, that the obligation to furnish, the infant with necessaries has not been discharged by the parent or general guardian of the infant.
    The theory upon which an infant is rendered liable for necessaries is that they have been furnished and were necessary, and that the parent has not the ability to pay therefor.
    
      Semble, that an admission Of the existence of a contract contained, in the answer interposed on behalf of an infant defendant in such an action, is not binding upon the infant.
    Appeal by the defendant, M. Louise Holmes, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 5th day of February, 1903, upon the verdict of a jury, and also from an order entered in said, clerk’s office on the 3d day of February, 1903,; denying the said defendant’s motion for a new trial made upon the minutes.
    
      Charles H. Searle, for the appellant.
    
      G. Burchard Smith, for the respondents.
   Hatch, J.:

The complaint averred a cause of action upon a promissory note made by the defendant Holmes and indorsed .by the defendant But. terfield. At the time the note was made the defendant was an infant over the age of fourteen years. The note itself, together with the indorsement thereon, was set ofit in the complaint, and it averred in connection therewith that the note was given for necessaries supplied to the infant in the form of board and tuition at the school conducted by the plaintiffs, and that the education so furnished was such as was suitable to the station in life of the infant; that the necessaries were supplied at the request of the infant and of her guardian, the defendant Butterfield. The answer, among other things, pleaded infancy as a defense to the note. Upon the trial the court held that there could be no recovery upon the promissory note, and that the infant could not be bound upon her executory contract. The court, however, permitted the action to proceed against the infant upon the theory that the complaint averred a cause of action as and for necessaries furnished to the infant, holding that a recovery might be had, if the board and tuition were necessaries, to the extent of their reasonable value, and the court submitted such question to the jury upon that theory. The jury found a verdict in favor of the plaintiffs for the amount represented by. the note. The evidence justified a finding that the board and tuition were a necessary of the infant and that the reasonable value thereof was the sum which the jury found. It is the contention of the defendant infant that the complaint stated a cause of action solely upon a promissory note, and that as the infant could not be bound by that contract the complaint as to her should have been dismissed. The complaint is somewhat meagre in its statement of a cause of action upon which to charge the infant as and for necessaries furnished, but within the doctrine announced in Goodman v. Alexander (165 N. Y. 289) we think the complaint may be regarded as sufficient to present such issue. Reaching this conclusion, we are confronted with the question as to whether a case was made which justified a recovery against the infant for necessaries furnished to her, and if so, whether reversible error was committed by the court in the disposition which it made of the case.

The evidence disclosed that both parents of the infant died when she was of a tender age and that the infant had resided with the defendant Butterfield, her aunt, who was also her general guardian. The mother of the infant had left some estate, the .amount and value of which, under the proofs developed upon the trial, is quite problematical. It appeared that the plaintiffs conducted a young ladies’ hoarding school in the city of New York, and that as early as September 2, 1898, the defendant Butterfield was in communication with the plaintiffs in regard to some arrangement which might be made with them for the board and tuition of the. infant. On this date the plaintiff Eva R. Murphy acknowledged the receipt of a letter from Mrs. Butterfield relating to such subject. In answer thereto she gave a description of the school, its respectability, . etc., and stating “ with reference to Louise I can tell you that I should be very glad to have her with us in our home. Five hundred dollars can be made to cover the regular school work, including Latin, German or French, Physical Culture and all English branches, also laundry and board. I will make this five hundred cover sitting in church.” On the 13th of’ September, 1898, the plaintiff Eva R. Murphy acknowledged the receipt of another letter from Mrs. Butterfield, and in reply thereto stated: “Your, letter brought double pleasure to us. In the first place we are glad to have Louise in our family, and, secondly, your frankness, Confidence and sound judgment promise that we shall understand each other, and desire the same things for our joint charge. * * * We shall expect her here September twenty-sixth. If you. are in town earlier, of course we shall he glad to ■ have you call and see us and her future school home: I hope that you will decide to come with her. for it would be more satisfactory to you to see how things are.” It appeared from the testimony • of the plaintiff Murphy that she visited Utica, where the defendants resided, the last of September, 1898. Whether this was before or after the last letter was written does not' clearly appear. She testified that while in Utica she made inquiries of Mr. Townsend, who represented the infant’s estate, as to its amount and value and she called upon the defendants at the home of Mrs. Butterfield. She was then informed that the father' and mother of the infant . Holmes were deceased and that she was living with .Mrs. B.htterfield ' in Utica. In a conversation which she had at the home of Mrs. Butterfield she told them the information she'had received from Mr. Townsend as to the value of the estate and that on account thereof she was perfectly secure, and they talked with respect to the amount of the board and tuition and the time of payment, and finally the sum of $500 was agreed upon as the tuition. It does not appear during this interview that Miss Holmes said anything. From all that appears she was a passive listener to the transaction and the conversation for the most part was conducted by the plaintiff Murphy and Mrs. Butterfield. There is not a scintilla of evidence to show that Miss Holmes, the infant, took any part whatever in the negotiations which resulted in the contract for the board and tuition to be furnished by the plaintiffs. Under date of October 24, 1898, tbe plaintiffs rendered a bill to Mrs. Butterfield for a half year’s schooling of Miss Holmes and other items, amounting to $255.65 ; and again on February 1, 1899, a bill was rendered by the plaintiffs to Mrs. Butterfield for one year’s tuition of $500 and other items, making a total of $508.43, giving a credit of $10 and leaving the amount of this bill $498.43. Upon this testimony it is evident that the jury would have been authorized to find that the contract for the board and tuition of Miss Holmes was made with Mrs. Butter-field and upon her security. Indeed, there is no proof showing of tending to show that any contract whatever was made with the infant. The only evidence in the case upon that subject was Miss Holmes’ presence during the conversation between the plaintiff Murphy and Mrs. Butterfield, in which reference was made to her estate, and her subsequent statements to Miss Murphy after the performance of the contract had begun as to the nature and character of her property. It is the settled law of this State that the obligation to support, maintain and educate the infant rests upon the father when the father is of sufficient ability to discharge the obligation. "Where the parents are not living the duty to provide support, maintenance and education is devolved upon the general guardian and may be taken out of the estate of the infant. Where the necessaries furnished to an infant are so furnished upon the credit of the parent or under contract with the parent or general guardian, no liability is established against the defendant even though the infant has a separate estate. (Goodman v. Alexander, supra; Wailing v. Toll, 9 Johns. 141; Gay v. Ballou, 4 Wend. 403.) If the plaintiff in the present case contracted with Mrs. Butterfield to. furnish the board and tuition for the infant upon her sole credit, then no recovery can be had therefor against the infant. The case, therefore, as it was made, presented an issue of fact, to say the least, as to whether the contract was made with Mrs. Butterfield, and upon her credit, and if so, no recovery can be had against the infant even though it be admitted that the board and tuition were necessaries, suitable to the infant’s station in life, and that they were reasonably worth the amount which was claimed. This • question was raised upon the trial and the court ruled against the infant defendant in respect to such question upon the ground that there was an admission of the contract in the answer to pay $500 for the board and tuition. Admitting that this was a correct statement of the position of the parties under the pleading, it by no means follows that the ruling was proper. Such admission, if made, was not binding upon the infant. (Bates v. Virole, 33 App. Div. 436.) In addition thereto it became incumbent upon the plaintiffs to prove as a part of their affirmative case that the obligation to support and maintain had not been discharged by the person upon whom the duty devolved before the liability of the infant would attach (Gray v. Sands, 66 App. Div. 572), and it necessarily follows that the plaintiffs could not recover, if they had furnished the board and tuition under contract with a third person. The theory upon which the infant is rendered liable for necessaries is that they have been furnished and were necessary and that the person standing in the relation of parent has not the ability to respond for the amount thereof. Where they have such ability, no liability can attach to the infant. It follows as a necessary sequence to this rule of law that where the necessaries are furnished pursuant. to a special, contract, entered into with a third party, no liability attaches to the infant for the reason that the person stipulates not to charge the infant but to charge the third party. It is the absence-of a contract which authorizes a recovery against the infant, not its presence. Following its ruling in respect to the evidence, the court submitted to the jury for their consideration a single question as to whether the board and tuition, for which the contract was made, were reasonable and proper, taking into account the station in life of the infant and her surroundings, and treated the answer as admitting a contract upon the part of the infant to pay therefor. The court refused in express terms to submit to the jury the question as to whether the contract' was made with Mrs. Butterfield, to the exclusion of the infant, to which refusal the defendant infant took an exception. This ruling was erroneous. If such contract existed, the plaintiff had no cause of action against the infant.

It follows’ that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  