
    Charles N. Gray, Respondent, v. Joshua Sands, Appellant.
    
      Necessaries for inf ants — the obligation of an infant therefor is-not greater than that of his father—he is not bound to pay more than their value—theatre tickets are not—borrowed money to be such must be so applied. ■
    
    The obligation of an infant to pay for necessaries furnished to him is not greater than the obligation of his father in respect thereto; they must be strictly necessaries and in substance are limited to such articles as are requisite for the body or for the proper cultivation of the mind.
    The infant cannot be charged with more than the fair value of the necessaries furnished even though he contracted to pay more.
    Theatre tickets are not necessaries for an infant attending college.
    An infant is not liable for borrowed money unless it is shown that it was applied to his personal use for some necessity..
    Appeal by the defendant, Joshua Sands, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of January, 1901, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s .office on the 31st day of January, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      William L. Snyder, for the appellant.
    
      Clifford W. Hartridge, for the respondent.
   Hatch, J.:

The complaint in this action sets forth five separate causes of action on contract assigned to the plaintiff by one Charles H. Thurs-ton, a stationer and proprietor of a college dormitory at Harvard University, where the defendant was a student at college in the years 1897-98 and 1898-99. The first cause of action is for forty-five dollars, which it is alleged was loaned to the defendant by the plaintiff’s assignor; the second for goods, wares and merchandise sold and delivered by Thurston to the defendant, for which he agreed to pay the sum of nine dollars and one cent; the third for theatre tickets; averred to have been sold by Thurston to defendant, for which he agreed to pay fifty-four dollars; the fourth for a balance of one hundred dollars averred to be due upon a lease of a suite of rooms for a term from October 1, 1897, to July 1, 1898, the lease providing that the lessee was to pay one hundred dollars on December 1, 1897, and one hundred dollars on June 1, 1898, it being claimed that the last named payment was not made ; and fifth for eleven dollars and thirty-eight cents averred to be due and unpaid for gas and electric light used by the defendant and which the defendant agreed to pay as provided in and by a .clause in the lease mentioned in the fourth cause of action.

The defense is infancy, and it appears that at the times referred to in the complaint the defendant was between sixteen and eighteen years of age. He entered Harvard in September, 1897, and left there in December, 1897; went back in the fall of 1898, and in December of the same year left for good ; his father paid all of his bills himself the first year, but during the second he was upon an allowance made by his father. The defendant was'still an infant at the time of the trial.

At the close of the proofs both parties moved for the direction of a verdict, the court denied the motion as to the defendant and granted that of the plaintiff. So far, therefore, as disputed questions of fact are concerned, the direction resolves them in favor of the plaintiff, as there was no request upon the part of the defendant to submit such questions to the jury for their determination. The action is upon contract and not upon a quantum meruit¿ and in effect the recovery has been had based upon the contract price agreed to be paid, and not upon the actual value of the commodities furnished. There is no averment in the complaint, nor was proof given upon .the trial to establish that the various articles sold and delivered or furnished to the defendant were necessaries, and while the character of some of the things furnished might have been shown to be necessaries, the plaintiff contented himself by relying solely upon the terms of the contracts. The primary obligation for the support and maintenance of an infant rests upon the father, and he may not be made liable except for necessaries furnished to the infant when he has failed in the performance of his obligation, and in order- to charge- him it is incumbent upon the person seeking to support the charge to aver and prove his failure to discharge the obligation and that the things furnished were strictly necessaries. (Manning v. Wells, 85 Hun, 27.) The obligation of an infant upon his contract to pay for necessaries furnished to him is not higher than the obligation of the father; they must be strictly necessaries, and in substance are limited to such articles as are requisites for the . body, such as food, clothing and lodging, or such as may be necessary for the proper cultivation of the mind* as suitable instruction. (Allen v. Lardner, 78 Hun, 603.) An infant cannot be made liable for borrowed money, except it be shown that it was applied to his personal use for some necessity, and the lender is bound to see that it is in fact so applied before liability is established. (Randall v. Sweet, 1 Den. 460; Smith v. Oliphant, 2 Sandf. 306.) Under this rule it is clearly evident that the judgment which has been rendered in this action cannot be sustained. There was no attempt to prove that the money which was loaned was used for any purpose as a necessity of the infant, or that any of the things furnished were a necessity for which the law would authorize a recovery. In addition thereto the charge for the theatre tickets was clearly not for a necessity. If some of the items might have been a proper charge against the infant, yet failure to allege and prove that they were necessaries, defeats a recovery. In addition to this it was also incumbent, upon the plaintiff to prove the value of the things furnished, as the.infant, could not be charged for a greater sum than the fair value of the. necessaries which were furnished, even though he contracted to pay more. In no view can this judgment be sustained.

The judgment and order should, therefore* be reversed and a new-trial granted, with costs to the appellant to abide the event.

Van Brunt, B. J., O’Brien, Ingraham and McLaughlin, JJ.,. concurred.

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