Opinion
December, 1903.
Wilford H. Smith, for the appellant.
Samuel F. Edmead, for the respondent.
In this action the plaintiffs, a firm of undertakers, have recovered a judgment for $132 against the defendant for services rendered by them and materials furnished in burying his deceased wife, Annie Brown. At the time of her death Mrs. Brown was living separate and apart from her husband, and it is undisputed that he had nothing to do with the employment of the plaintiffs. They were employed by a friend of the deceased woman named Edward Hayes, to whom she had handed a policy of insurance on her life, which was payable to her husband as beneficiary, at the same time requesting Mr. Hayes to see that she was buried. Pursuant to this request he saw the plaintiffs and asked them to provide for the funeral and interment, which they did.
It seems, however, that before he saw the plaintiffs in regard to the matter the body of Mrs. Brown had been sent by a lady friend to the establishment of another undertaker named Thomas, with instructions to prepare it for burial. There it was found by the plaintiffs, one of whom testified that he paid Thomas twenty dollars before he removed the remains from the shop, because Thomas would not let him take the body unless he did so. This witness testified that the reasonable value of the services rendered and materials furnished by his firm amounted to one hundred and fifteen dollars; and he added twenty dollars to his bill on account of the twenty dollars paid to the other undertaken in order to get possession of the remains.
A surviving husband is under a legal obligation to bury the corpse of his wife, being allowed to reimburse himself from the separate estate of his deceased wife if she has left any such estate. ( Patterson v. Patterson, 59 N.Y. 574; McCue v. Garvey, 14 Hun, 562; Freeman v. Coit, 27 id. 447.) If the husband fails to perform this duty he is liable to an action to recover the reasonable value of its performance by any person who, on account of his absence or neglect, has properly incurred the expense of the necessary burial. This rule applies to the present case. It does not appear that the deceased wife left any property other than the policy of life insurance payable to her husband. The plaintiffs were solicited to attend to the interment by a friend of Mrs. Brown, who acted in the matter at her special request. They cannot be regarded, therefore, as having officiously intermeddled in the matter as is suggested in behalf of the appellant. Under the facts as established by the proof they are entitled to recover the reasonable value of their services. This amount, however, could not include the twenty dollars which was exacted from them by the undertaker Thomas as a condition of giving up the body. Even if that charge represented any services claimed to have been performed by Thomas, there is no evidence that the reasonable value of his services amounted to that sum or any other.
The judgment should be modified by deducting twenty dollars from the amount of the recovery, and as thus modified affirmed, without costs of this appeal to either party.
GOODRICH, P.J., WOODWARD, JENKS and HOOKER, JJ., concurred.
Judgment of the Municipal Court modified by deducting twenty dollars from the amount of the recovery, and as thus modified affirmed, without costs of this appeal to either party.