Read v. Bolger ( 1901 )

Jenks, J.:

The action is brought to recover for work, labor and materials in plumbing work upon a house which was owned by the defendant Charles F. Bolger, and leased hy him to his mother, Eliza Bolger. The allegation is that the work, labor and plumbing materials were furnished at the special instance and request of the defendants. There is no proof that any work or material was ordered by Charles F. Bolger, save certain work and materials for which bills had been rendered to him, which, it is admitted, were paid. There is no presumption of his liability for work ordered by his tenant arising from the mere facts that he was the owner of the house and for a time' was a boarder therein. The plaintiff, under exception, offered testimony that when money was demanded of the defendant Eliza Bolger, she said that her son owned the house and would pay the bill rendered. But this declaration of the tenant is not. sufficient to cast liability upon the landlord. It does not appear but that the conversation of Charles F. Bolger with plaintiff’s workmen referred to the work that he himself ordered, and for which, admittedly,, he has paid, or, in any event, that it referred to any work covered by the bill of particulars in this case. On the other hand, the testimony of Eliza Bolger is that she had no authority from her son to order the work in question, but that she1 took the responsibility upon herself. She also testified that she paid an annual rent of $900, and that there was no understanding as to whom should make the .repairs, but that she had expected to make them. Mr. Bolger testifies that he never ordered any of the work, and never authorized any one to order it, but, on the contrary, that he distinctly said that none must be ordered at his expense,, and that the first time that he ever learned of this claim, which is for work done in 1897, 1898 and 1899, was in July, 1899, when his mother told him that she owed the bill and could not attend to the plumbing any longer. He testifies, too, that no bills for any work or materials had ever been, rendered to him other than those I have referred to in this opinion.

The judgment of the Municipal Court must be reversed and new trial ordered, costs to abide the event.

All concurred, except Hibsohbebg, J., dissenting.

Judgment of the Municipal Court reversed and new trial ordered,' costs to abide the event.