(182 N.Y.S.)

der the defendants said the goods would be delivered in two or three weeks. But this was not a part of the agreement. The order is dated May 24, 1919, and the plaintiff told the defendants, he wanted the goods for his fall trade, he being in the retail clothing business, so he had no need of them in two or three weeks; and the plaintiff did not attempt to hold the defendants to a delivery within that period. When the goods were not received, he visited the defendants several times, and finally, after two months had elapsed, the defendants told him the goods had been sold to others. Thereafter this action was brought. It is admitted that the prices of the suits went up after the order was placed, though there is a dispute as to the amount of the advance.

[4] The memorandum does not contain any signature of the defendants, either in ink or pencil; but the printed firm name appears at the top of it, and it is contended by defendants that this is not a signing within the meaning of the statute. The statute does not specify any particular form of signing. It merely requires that the party to be charged shall have signed the memorandum. It has been held that a cross mark is a good signature (Zacharie v. Franklin, 12 Pet. 151, 161–162, 9 L. Ed. 1035); also initials (Barry v. Coombe, 1 Pet. 640, 7 L. Ed. 295; Salmon Falls Mfg. Co. v. Goddard, 14 How. 446, 14 L. Ed. 493); even numerals, when used with the intention. of constituting a signature (Brown v. Butchers' & Drovers' Bank, 6 Hill, 443, 41 Am. Dec. 755); and a typewritten name or imprint made by a rubber stamp has the same effect (Landeker v. Co-operative Bldg. Bank, 71 Misc. Rep. 517, 130 N. Y. Supp. 780; Degginger v. Martin, 48 Wash. 1, 4, 92 Pac. 674); and this is equally true, though the typewriting or stamp impression be made by another, if the person to be charged has directed it (Deep River National Bank's Appeal, 73 Conn. 341, 346, 47 Atl. 675).

These and similar cases establish the rule that any name or symbol used by a party with the intention of constituting it his signature, or which is adopted by the party as his signature, is sufficient; and from this it necessarily follows that the party's name printed on the memorandum fully satisfies the statute, if it is shown to have been adopted by him as his signature. This has been the law in England for more than a century, and has been followed quite generally in this country. Saunderson v. Jackson, 3 Esp. 180; Schneider v. Norris, 2 M. & S. 286; Evans v. Hoare, 1 Q. B. 593, 596; Hucklesby v. Hook, 82 L. T. N. S. 117; Cohen v. Wolgel, 107 Misc. Rep. 505, 176 N. Y. Supp. 764; Drury v. Young, 58 Md. 546, 553, 554, 42 Am. Rep. 343. See other cases in note, 37 L. R. A. (N. S.) 352. It has even been held that the name of a party printed on the loose cover of his order book is sufficient. Jones Brothers v. Joyner, 82 L. T. N. S. 768. There is nothing in conflict with this holding in James v. Patten, 6 N. Y. 9, 55 Am. Dec. 376, and similar cases, for they only decide that under a statute requiring the memorandum to be "subscribed" there had to be a manual signing of it at the end. But even these cases, so far as they say there must be a signature made by hand, have been seriously

questioned. Landeker v. Co-operative Bldg. Bank, 71 Misc. Rep. 517, 130 N. Y. Supp. 780.

[5] Where the statute (like the present form of ours) merely requires that the memorandum be signed and not subscribed, it is complied with if the signature appears upon any part of the paper. Merritt v. Clason, 12 John. 102, 7 Am. Dec. 286, affirmed as Clason v. Bailey, 14 John. 484; New England, etc., Co. v. Standard Worsted Co., 165 Mass. 328, 331, 43 N. E. 112, 52 Am. St. Rep. 516; Barry v. Coombe, 1 Pet. 640, 7 L. Ed. 295. And the signing by one partner binds the firm. Salmon Falls Mfg. Co. v. Goddard, 14 How. 446, 455, 14 L. Ed. 493; Hughes v. Gross, 166 Mass. 61, 43 N. E. 1031, 32 L. R. A. 620, 55 Am. St. Rep. 375.

[6, 7] There is no merit in the other contentions made by defendants. The plaintiff was not obliged to make any tender. The defendants not only failed to deliver the goods, but told the plaintiff they had sold them to other parties. And defendants cannot complain that the trial court did not award the plaintiff as large damages as the proof might have warranted. Nor is the judgment against the weight of the evidence. On the contrary, the record clearly shows that the defendants failed to carry out their agreement because the prices of the suits had risen.

The judgment should be affirmed, with costs.
CLARK and KELBY, JJ., concur.

C. A. BRANDT CO. v. ENGELHARDT.

(Supreme Court, Appellate Term, Second Department. May Term, 1920.) 1. Husband and wife 19 (14)-Porch and window awnings are "necessaries."

Porch and window awnings for the family residence, which were ordered by the wife, will be deemed "necessaries."

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Necessaries.]

2. Husband and wife 19 (13)-Wife presumed to act as agent for husband in contracting for repairs.

Where a husband knew of the existence of porch and window awnings at the family residence, that fact will raise a presumption that the wife, in contracting for the repair and installation of such awnings, was acting as his agent.

3. Husband and wife 19 (13)—Agency of wife in purchasing necessaries is presumptive only.

The agency of a wife to purchase necessaries is presumptive only, and the husband may show that he furnished all supplies, or had furnished his wife with sufficient money for that purpose; but a rebuttal of the presumption is a matter of defense by the husband, and a tradesman, furnishing necessaries on request of the wife, may in the first instance rely thereon.

4. Husband and wife 19 (13) —Husband's testimony that he furnished wife money does not rebut presumption of agency in purchasing necessaries. Testimony by a husband that he furnished his wife with money to run the household, without any showing as to the amounts, or his income, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.)

will not rebut the presumption that the wife, who purchased necessaries on credit, was acting as his agent.

5. Husband and wife 19 (13)—New trial ~108 (3)-Presumption of agency of wife in purchasing necessaries held not rebutted, and newly discovered evidence not shown.

The presumption that a wife, in purchasing necessaries on credit was acting as her husband's agent, is not rebutted by the fact that a bill was sent in the name of the wife; and hence, in an action against the husband after the wife's death, alleged newly discovered evidence that the bill was so made is no ground for granting the husband a new trial.

Appeal from Municipal Court, Borough of Brooklyn, Sixth District.

Action by the C. A. Brandt Company against Albert Engelhardt. From a judgment for plaintiff, and an order denying defendant's motion for new trial on the ground of newly discovered evidence, defendant appeals. Judgment and order affirmed.

Argued May term, 1920, before CLARK, KELBY, and CROPSEY, JJ.

Charles Burston, of Brooklyn, for appellant.
Charles J. Ryan, of Brooklyn, for respondent.

KELBY, J. Plaintiff sued to recover the sum of $86 for "re-covering and installing" certain porch and window. awnings. In May, 1919, defendant's wife, since deceased, gave plaintiff's salesman an order to re-cover the awnings on the house where she then lived with her husband, the defendant. Defendant's wife selected the material. Plaintiff showed that the work had been done and that defendant had not paid therefor, and then rested.

Appellant contends that his motion to dismiss should have been granted, because the plaintiff did not show as part of its affirmative case (1) that the defendant had not furnished awnings for the house occupied by him and his wife; and (2) that plaintiff did not show by affirmative proof that defendant had failed to supply money to his wife with which to repair the awnings in question.

[1, 2] The court below properly denied defendant's motion to dismiss. Concededly, defendant was living with his wife and family at the house when the awnings were installed. Awnings for the porch and windows, where a family reside, fall within the classification of articles and household supplies which are denominated as necessaries. The husband knew the awnings were there and being used. Under the circumstances disclosed there arose a presumption of fact that the wife was acting as agent for the husband in contracting for the repair of the awnings and their installation. Wanamaker v. Weaver, 176 N. Y. 75, 68 N. E. 135, 65 L. R. A. 529, 98 Am. St. Rep. 621; Keller v. Phillips, 39 N. Y. 351; Frank v. Carter, 219 N. Y. 35, 113 N. E. 549, L. R. A. 1917B, 1288; Baccaria v. Landers, 84 Misc. Rep. 396, 146 N. Y. Supp. 158.

[3] The agency of the wife to purchase even ordinary household supplies is only presumptive, and may be disproved by the husband

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

by showing that he had furnished all supplies, or that he had furnished the wife with ample ready money for that purpose. This, however, is a matter of defense by the husband, and not part of the tradesman's case. Wanamaker v. Weaver, supra, 176 N. Y. at page 82, 68 N. E. 135, 65 L. R. A. 529, 98 Am. St. Rep. 621; Rosenfeld v. Peck, 149 App. Div. 664, 134 N. Y. Supp. 392; Wickstrom v. Peck, 155 App. Div. 523, 525, 140 N. Y. Supp. 570.

[4] The defendant testified generally to the conclusion of fact that he furnished his wife with sufficient money to buy the "food and household goods on every occasion"; that he was on the road a good deal, and gave his wife money with which to run the household. At no place in the record is there any evidence of the defendant's income, or the amount of money which he declares he furnished his wife. The judgment is supported by the evidence and should be affirmed.

[5] As to the appeal from the order denying defendant's motion for a new trial on the ground of newly discovered evidence: The husband makes affidavit that his wife died on January 7, 1920, and that thereafter he was by reason of mental distress unable to attend to business; that he discovered after the trial of this action that plaintiff had sent a bill for the work, made out to defendant's wife, and he presents the bill, together with the envelope in which it was inclosed, both bearing his wife's name. It is argued from this that plaintiff intended to hold the wife individually. In Speckmann v. Foote, 138 N. Y. Supp. 380, it was held that the presumption of the wife's agency still existed, although a bill was sent to the wife. In Baccaria v. Landers, 84 Misc. Rep. 396, 146 N. Y. Supp. 158, it was said that "the mere fact that the defendant's wife ordered the goods, and that the plaintiff sent a bill for the goods to her, did not release the defendant from liability." The court below, therefore, properly disposed of the motion.

Judgment and order affirmed, with $20 costs.

CLARK and CROPSEY, JJ., concur.

LOUIS BOSSERT & SONS, Inc., v. PIEL BROS., Inc.

(Supreme Court, Appellate Term, Second Department. May Term, 1920.) 1. Master and servant ~354-Workmen injured by third person may elect to sue him or accept compensation.

Under Workmen's Compensation Law, § 29, an employé, injured by a third party, may elect to accept the statutory compensation, or to sue the third party as though the Workmen's Law did not exist: but, if he takes compensation, he cannot later sue the third party, for in that event his claim against the third party is assigned to the person paying the compensation.

2. Master and servant

389-Employer paying compensation may recover from wrongdoer more than amount paid.

Where employer, having paid the statutory compensation to his employé, injured by the negligence of another, sues such other under Workmen's For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.)

Compensation Law, § 29, the amount recoverable in such suit is not limited to the amount paid as compensation, but all that is recovered above the amount paid as compensation is for the benefit of the injured employé.

3. Master and servant 393%-Neither injured employé nor doctor can sue employer for medical services.

An injured employé cannot sue his employer for his medical expenses, although Workmen's Compensation Act, § 13, requires the employer, after notice, to furnish such services; nor can a doctor, who has rendered services to such employé, sue his employer therefor.

4. Master and servant

389-Employer not subrogated to employé's rights against wrongdoer, from whom employé recovers amount exceeding statutory compensation.

Where employé, injured by third party, received from him, in compromise of action against him, a sum in excess of the compensation recoverable under the Workmen's Compensation Law, his employer, not consenting to the settlement, could not recover from such third party, under section 29, the amount of value of medical services rendered to the employé, paid by the employer, for, while the cost of furnishing medical attendance is a part of the statutory compensation, the statute is clear that, when an employé recovers from a third party more than the compensation would be under the statute, the employer is not subrogated to any of the employe's rights against the third party.

Appeal from Municipal Court, Borough of Brooklyn, Third District.

Action by Louis Bossert & Sons, Incorporated, against Piel Bros., Incorporated. From a judgment for defendant, after trial before the court without a jury, plaintiff appeals. Affirmed.

Argued May term, 1920, before CLARK, KELBY, and CROPSEY, JJ.

Maurice B. Rich, of New York City (Alex. M. Hamburg, of Brooklyn, of counsel), for appellant.

Fitch & Grant, of New York City (Robert A. Peattie, of New York City, of counsel), for respondent.

CROPSEY, J. An employé of the plaintiff in the performance of his work was injured through the carelessness of the defendant. The plaintiff was a self-insurer under the Workmen's Compensation Law (Consol. Laws, c. 67), but the employé elected not to take compensation under the statute, but instead to sue the defendant. Such an action was begun, and later compromised for a sum in excess of the amount of the compensation which the employé could have received under the statute. The plaintiff did not consent to the settlement. The plaintiff furnished medical attendance for the injured employé under the provisions of the Workmen's Compensation Law (section 13), and expended $182.50 therefor. In this action plaintiff seeks to recover that sum, and also a further sum for the damage to its truck, which was occasioned at the time of the accident to its employé. The court below gave the plaintiff judgment for the amount of damage to its truck, but refused to allow its claim for the medical expenses. The plaintiff appeals from the latter part of the court's. decision. The sole question for review is whether the defendant is

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes