Cornelius v. Reiser , 44 N.Y. St. Rep. 491 ( 1892 )

Daly, C. J.

The plaintiff’s husband was employed as bar-keeper, and tcf take general charge of a saloon conducted by the defendant, and was authorized to pay the daily expenses out of the receipts, but, it is claimed, had no-authority to incur debts. After three years of service, he left the defendant’s-employment, and subsequently this action was brought by the wife to recover $141.18 for washing towels and napkins used in the saloon for the whole-period of her husband’s employment. The jury allowed the plaintiff about one-half of the sum claimed, namely, $72.80, which was, in effect, a finding that she was entitled to recover for one-half of the period sued for. It is easy to see how the jury reached this conclusion. There was no evidence that the defendant knew that this item of expense was incurred by the bar-keeper until 18 months after the employment of the latter, and the jury considered, that the evidence of authority in the bar-keeper to incur the expense before-that time was sufficient to charge the defendant. The plaintiff does not complain that her claim has been cut down one-half, and this appeal is taken by the defendant, who insists that a recovery even to the amount allowed is not supported by the evidence. It is undisputed that the washing of towels and. napkins for use in the saloon was indispensable. The defendant is chargeable with notice of the fact from his knowledge of the business in which he* was engaged, i. e., conducting this and other saloons, and he must have-known that it was not included in the expenses for which he settled with the bar-keeper every week. The failure of the latter to make any charge for the services of his wife in this regard during the first 18 months furnishes some-grounds for the contention that such services were, in his view, to be included in those for which he received compensation from the defendant. But any agreement implied from failure to make such charge was terminated'; by the subsequent express notice from the bar-keeper to the defendant that he-would have to get the washing done. This notice was given defendant when. lie came to the saloon, as usual, on a Friday, to get the receipts, and examine ¡the book-entry of expenses, and his reply was that he would see the bar-keeper ■the following Friday about it. Nothing occurred the following Friday on the subject, nor for 18 months afterwards, and not until two or three weeks ¡before the bar-keeper left, when he asked defendant for money to pay for washing the towels, and was again put off, defendant telling him to wait 'until Friday. The jury believed the evidence as to this notice, and concluded, ;as they reasonably might, that, from the time defendant received it, his silence indicated assent to the incurring of the necessary expense, and conferred authority to that end upon the bar-keeper. The main question in the case was therefore one of fact for the jury, and their finding upon the evidence cannot be disturbed. There are no exceptions which require reversal of the judgment. There was evidence, as I have said, of implied, if not express, authority for the employment of plaintiff during the period for which the recovery has been had. The case does not depend upon ratification after the act. There is no force in the objection that the wife’s services belonged to her husband, and formed no basis of claim against a third party, nor that the contract for such services is invalid, because made between husband and wife. This was a contract between the defendant and the plaintiff, mads through the husband, and not a contract of the plaintiff with the latter. Iff the plaintiff had done this work for her husband, she would not be entitled to compensation from him for it; but there is a distinction between working for him and working with him for a third person,—between helping her husband in his business, and helping in the business of a third person,—and, wher* "the work is done for a third person, the earnings belong to the wife. Blaechinska v. Howard, Mission, (N. Y. App.) 29 N. E. Rep. 755. The appellant is mistaken in the claim that the plaintiff testified that she did not commence to ■wash for defendant until August 20, 1887. The case shows her testimony to be that she commenced August 20, 1886. As to the claim that the verdict is -excessive, because plaintiff was allowed to recover for washing towels to be used on Sundays, (on the ground that it was work done to be used in an unlawful business,) there is no evidence that the plaintiff knew that the towels were to be so unlawfully used. The only statement made by her was that she washed them in lots enough to have five clean every day, including Sunday, but this may have been a mere method of computation or reckoning of the weekly quantity. The instruction to the jury that the plaintiff might recover for work used on Sunday, although not done on Sunday, is not necessarily erroneous. The charge does not say nor imply that recovery can be had for work used in an unlawful business on Sunday, and that is the point of appellant’s claim of error. Judgment and order affirmed, with costs.