John J. Callahan, Respondent, v. Margaret O'Rourke, Appellant

John J. Callahan, Respondent, v. Margaret O’Rourke, Appellant. liability of a wife for medical sermces rendered her husband—what does not establish an account stated. Evidence of a physician that he rendered medical services to a man who, upon one of the calls, paid him one dollar; that, after the man’s death, the physician presented his bill of forty-four dollars and fifty cents tó the widow, who paid him five dollars, and offered to pay him twenty dollars in settlement, saying . that he had better take twenty dollars than nothing, not accompanied by any proof that the widow ever employed the physician or in any way suggested or requested that he attend "her husband, is insufficient to establish an. account . stated as between the physician and the widow. Appeal by the defendant, Margaret O’Rourke, from a judgment of the County Court of Saratoga county in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 25th day of January, 1897, affirming a judgment of a justice of the peace, and also from an order entered in said clerk’s office on-the 25th day of January, 1897, affirming said judgment of the justice of the peace. The return of the justice recites that the “plaintiff makes complaint for medical services, 1895, for $44.50 upon an account stated.” The answer was a general denial. . • The evidence of the plaintiff is that he rendered service as a doctor for the defendant’s- husband in his lifetime. That, Upon one of his calls, defendant’s husband paid him one dollar. After the husband’s death, the plaintiff presented his bill for such services to the defendant; she paid him five dollars, and offered to pay him twenty dollars in settlement of the bill, saying to him that he had better take twenty dollars or nothing. No evidence was given upon the part of the defendant. The justice rendered judgment against the defendant; the defendant appealed to the County Court; the County Court affirmed the judgment, and from such judgment of affirmance the defendant appeals to this court. John L. Henning and John J. Healey, Jr., for the appellant. Willard, J. Mmer, for the respondent. [MAJORITY — JPbb Curiam :] JPbb Curiam : The rendition of the plaintiff’s bill to the defendant, her payment thereon of five dollars and. proposal to- settle the same for. twenty dollars, are relied upon to establish an account- stated between the parties. We do not think the facts proved are, under the circumstances of this case, sufficient to establish an account stated between the parties. The plaintiff’s own evidence shows that all the services rendered by him were for the defendant’s, husband personally; there is no pretense' that the defendant ever employed him, or in any way sug-gested or requested that he attend her husband. There were never any dealings between the plaintiff and defendant prior to her husband’s death-; there was no legal or equitable claim upon the defendant by the plaintiff, and hence there was nothing upon which an account could be stated. (Field v. Knapp, 108 N. Y. 87.) The judgment should, therefore, be reversed. • All concurred. Judgment of the County Court and Of the justice reversed, with ' costs and disbursements of this appeal and.costs and disbursements in the courts below.