Stetson v. Russell

130 Misc. 713, 225 N.Y.S. 139, 1927 N.Y. Misc. LEXIS 1181

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 11, 1927
• Status: Published

Opinion

Per Curiam.

The action was brought against defendants John Russell and Ralph Russell to recover the reasonable value of medical services claimed to have been rendered by plaintiff to Ralph Russell, the son of John Russell, in operations for blood transfusion upon the defendant Ralph Russell. The evidence shows that at the time of the alleged operations the defendant Ralph Russell was an infant twenty years of age residing with his father, the codefendant, upon whom the primary obligation for the payment of such services is imposed by law. John Russell was never served in this action and the case proceeded solely against Ralph Russell, who was twenty-one years of age at the time of the commencement of the action.

There is no evidence of any ratification by Ralph Russell after he became of age. In order to fasten any liability upon the defendant Ralph Russell for said alleged services rendered to him in his infancy it was absolutely necessary for the plaintiff to prove, in the absence of any ratification by the infant when he became of age, not only that the services so rendered were necessaries furnished to the infant, but that the father was not financially able to discharge the obligation for such services, or failed to discharge his duty in furnishing medical services, or that he was unwilling to furnish such services, or would not pay for them. (International Text Book Co. v. Connelly, 206 N. Y. 188, 195; Goodman v. Alexander, 165 id. 289; Murphy v. Holmes, 87 App. Div. 366; Potter v. Thomas, 164 N. Y. Supp. 923.) This the plaintiff failed to do.

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Delehanty, Lydon and Crain, JJ.