
    Chloe M. Norton, Resp’t, v. William Norton, as Adm’r, etc., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1888.)
    
    1. Negotiable paper—Evidence of ownership.
    The fact that promissory notes express a consideration and are in the possession of the plaintiff at the time of the trial, furnishes presumptively some evidence of their consideration and delivery, even though at the time they were made the relation of husband and wife existed between the maker and payee.
    2. Same—Husband and wife—Loans by wife to husband—Real property—Improvements upon—When presumed to be voluntary.
    Where husband and wife live together on property owned by the wife, no promise will be implied on the part of the wife to pay for improvements made thereon by the husband. It will be presumed, nothing appearing to the contrary, that" they were voluntarily made by him This is because of the situation and relation of the parties, and not because of want of capacity on the part of the wife to charge herself with liability
    Appeal from judgment entered on report of referee against the defendant.
    M. Hopkins, for app’lt; Thad. Collins, Jr., for resp’t.
   Bradley, J.

The action was brought to recover the amount alleged to be due upon three promissory notes, made by the defendant’s intestate, payable to the plaintiff, and bearing date January 15, 1882, January 15, 1883, and February 7, 1883. At the time the notes bear date the plaintiff was the wife of the maker of them, who died in 1884.

The defendant’s counsel contends that there was a failure -of proof to show that the notes were delivered by the maker to the plaintiff, and that it appears that they were not delivered. Although the relation of husband and wife ■existed between the parties to the notes at the time they were made, the fact that the notes express a consideration, .and were in the possession of the plaintiff at the time of the trial, furnishes presumptively some evidence of their consideration and delivery. Benedict v. Briggs, 34 Hun, 94;: Conger v. Armstrong, 3 Johns. Gas., 5.

There is some evidence tending to prove that the plaintiff loaned money to her husband and that the notes were made on that account. In respect to the delivery of the notes, the: evidence given by the plaintiff, on being called as a witness-on the part of the defendant, was somewhat indefinite. While she testified that one of the notes to which her attention was called was given to her, and that her husband gave to her notes, she also said the notes were kept with other notes in a trunk in which he had papers and accounts; that, she let him have the money specified in the notes; that he took the money and then made the notes, put them in the trunk, kept them himself; that all she, at the time of the trial, knew about the amount of money she let him have was by the notes and their amount, and that she never called upon him for these notes or any part of them. While this evidence does not necessarily show that the notes were not delivered by her husband to her, it presented a question of fact in that respect which would have supported a conclusion of the referee that they had no inception during the life of the defendant’s intestate. There is, however, other evidence to the effect that the intestate, in the fall of 1882,. said he owed the plaintiff some money and had given her a. note or notes, and that in 1883, in a conversation between them, he requested the plaintiff “to bring some notes from, the bed-room” and have the interest figured up. The evidence all together warranted the conclusion of the referee that the notes were delivered and became effectual during the life of the maker.

The further question arises upon the claim alleged in the answer of indebtedness of the plaintiff to her husband at the time of his death, for materials and services in making repairs and improvements upon her premises, and for other services in and about her business.

Upon that subject it appears that about nine years before the husband’s death the plaintiff purchased a house and lot situated in the village of Palmyra, N. Y., and they then went to live and did reside on the premises together until his death, and she continued there; that the husband,, during the time of their residence there furnished materials and made some improvements upon the lot, amongst, which was the construction of a barn. The plaintiff had knowledge that he was doing this work as it progressed, but there is no evidence that she requested him to do it, or made to him any promise to pay for it. The contention is that inasmuch as the improvements were made with her knowledge, a promise on her part to pay what they were reasonably worth, was implied.

We think that view cannot be supported. They were living upon the premises and enjoying the use of them together. He was the head of the family, and it may be assumed that he as an occupant with the plaintiff expected to derive from them a benefit by way of enjoyment of the improvements so made. And nothing appearing to the contrary, it would be presumed that this work was voluntarily done by him; at all events no request would, under-such circumstances, be implied to charge the wife with liability to him. Ainsley v. Mead, 3 Lansing, 116; Lynn v. Smith, 35 Hun, 275; Jones v. Walker, 63 N. Y., 612. _

_ This is the consequence of the situation and relation of those parties, and not of any want of capacity on the part-of the wife to charge herself with liability, because in respect to her separate estate her marital relation does not deny to her the right to incur responsibility, and when circumstances permit, her liability may rest upon a promise implied as well as expressed. Ackley v. Westervelt, 86 N. Y., 448.

As there was no evidence to charge the plaintiff with liability to the husband, the exclusion of the evidence of value of the improvements so made by him was not error. Nor was there any evidence of a promise by the plaintiff made after the husband’s death to support the counterclaim alleged in the answer.

There was evidence tending to prove that shortly after the death of her husband, in a conversation with the defendent, had, as is assumed before he became administrator, the plaintiff said she was willing to do what was right for those improvements; that she was willing to allow $500 for them.

This proposition was not accepted, and she declined to bo bound by what others should say they were worth. So there appears no agreement on her part to pay any specific sum on account of them or their estimated cost or value. There is, therefore, no evidence requiring consideration of the question of liability founded upon a subsequent promise to pay for that which is beneficial to the promisor, or which permits the application of that doctrine to this case. And whether there were any circumstances which can afford any equitable remedy to, or in behalf of, the creditors of the intestate, in the event of the insolvency of his estate, is not within the issues in this action. No other question seems to need consideration.

The judgment should be affirmed.

Barker, P. J., Haight and Dwight, JJ., concur in the result.  