Opinion
May, 1921.
Judgment and order of the County Court of Kings county reversed and a new trial ordered, costs to abide the event. The proof showed no employment of plaintiff by the testatrix. The services having been rendered during the lifetime of the testatrix's husband, in the absence of proof to the contrary, it must be assumed that the services were rendered at the instance and request of testatrix's husband, and that he was liable therefor. ( May v. Josias, 159 N.Y. Supp. 820.) The services in question as housekeeper, nurse, etc., would come under the head of necessaries, and, although furnished to the wife, the husband is responsible. ( Valois v. Gardner, 122 App. Div. 245; Thrall Hospital v. Caren, 140 id. 171.) The testimony of plaintiff was improperly admitted, as plaintiff was incompetent to testify to personal transactions between herself and testatrix. (Code Civ. Proc. § 829.) Blackmar, P.J., Mills, Rich, Putnam and Jaycox, JJ., concur.