
    Charles Minners and Henry Minners, Respondents, v. Maria T. Smith, Appellant.
    Appeal from a judgment of the General Term of the City Court of the city of New York, affirming a judgment of the Trial Term, entered on the verdict of a jury, and an order of the Trial Term denying defendant’s motion for a new trial.
    J. E. Chandler, for appellant,
    J. I. Wiener, for respondents.
   Gildersleeve, J.

The plaintiffs were copartners, carrying-on a grocery business. The complaint is for a balance due for goods sold and delivered to the defendant. The answer is a general denial. The jury found for the plaintiffs. The defendant appealed to the General Term of the City Court, where the judgment and order were affirmed. Erom the judgment of affirmance the defendant appeals to the Supreme Court.

The plaintiffs’ witnesses testified that the account was opened by the defendant and the credit given to her personally, and that the goods were ordered by her and delivered at her residence, and that the balance claimed has not been paid. Defendant’s husband swore that he opened the account with plaintiffs; that his wife was an invalid and that, as a general rule, he or his daughter ordered the articles. It is conceded that defendant was a married woman; that the plaintiffs were aware of that fact; that the goods so delivered were for the use of the family of defendant; and that the majority of the plaintiffs’ bills were paid by checks signed by the husband of defendant.

The defendant made no motion to dismiss the complaint, and made no motion for the direction of a verdict in her favor. The justice charged the jury not to consider the fact that the defendant was a married woman, hut simply to decide the disputed question of fact whether or not the goods were, ordered by defendant and delivered to her by plaintiffs, and have not been paid for. No exception was taken to the body of the charge, but the defendant’s counsel asked the court to charge as follows, viz.: Defendant’s counsel: “It appearing- in evidence that the defendant is the wife of Mr. Smith, and that these goods were furnished to the family, I would like to have you charge the jury, as a presumption of law, that whatever IVIrs. Smith (the defendant), did in the purchase of these goods, she did for her husband, upon her husband’s suggestion.” The Court: “ Ro, sir; I decline to charge as requested, because, as I have said before, if you intended to plead that, you should have done it in your answer.” To this refusal defendant’s counsel duly excepted.

The failure of the defendant to make a motion to dismiss the complaint was an admission that there was a question of fact for the jury. See Greenspan v. Newman, 37 Misc. Rep. 784, 76 N. Y. Supp. 894; Hopkins v. Clark, 158 N. Y. 299. As the jury found for the plaintiffs, we are compelled to accept as correct the contention of the plaintiffs that the account was opened by the defendant; that the credit was given to her; that the • goods were ordered by her and delivered at her residence and have not been paid for.

When the jury returned with a verdict for plaintiffs, defendant’s counsel said: “ I make a motion for a new trial on all the grounds enumerated in section 999 of the Code, and on the additional ground that, under the law, the husband is liable for necessaries supplied to his family, and.that the burden in this case was upon the plaintiffs to establish, by a preponderance of proof, that she had made herself individually liable, and took it out of the statute, in other words, made an individual contract which the law presumes to exist.” The Court: “ That would have been possible, it is true, if you had pleaded it in your answer; but your answer is simply a denial that the plaintiffs sold to the defendant in this action.” The motion was denied, and defendant’s counsel duly excepted. The main question urged upon this appeal is the following, viz.: Under a general denial of the allegations of the complaint, that the goods were sold and delivered to defendant, can the defendant avail herself of the defense that she was a married woman, and that the goods, mentioned in the complaint, were necessaries ordered for her family, for which her husband should have been held liable? We are of the opinion that this question must be answered in the negative. Such defense should have been set up in the answer. See Frecking v. Rolland, 53 N. Y. 422.

It may further be observed that, as the finding of the jury compels us to accept as a fact that defendant individually contracted with the plaintiffs and opened the account on her own behalf, and that the credit was given to her personally, her liability is not affected by the fact that she was a married woman; for even where the defendant is a married woman, and has no separate estate, and is engaged in no separate business, the plaintiffs are not thereby prevented from recovering for goods purchased by her upon her individual credit. See Orisfield v. Banks, 24 Hun, 159.

There are no exceptions in the case which require discussion.

The judgment of the General Term is affirmed, with costs.

Fbeedmakt, P. J., and Giegebich, J., concur.

Judgment affirmed, with co'sts.  