six weeks' attendance by the nurse; whereupon an exception was duly taken in behalf of the defendant. I do not think the trial judge erred in refusing to give the instruction thus prayed for. No doubt it is the rule that there can be no recovery for services unless there is some evidence as to their value. In Leeds v. Metropolitan Gas Light Co., 90 N. Y., 26, and Kane v. Manhattan Railway Co., 3 N. Y. State Rep., 145, the judgments were reversed because under the instructions given it seemed probable that damages had been awarded to the plaintiffs on account of loss of time, whereas there was no proof as to the amount of their earnings, nor any other evidence by which the value of the time lost could properly be estimated.

In the case at bar, however, there is not the same absolute lack of evidence as to value that there was in those cases. In regard to property, the rule is well established that the price paid therefor is some evidence of value. Hoffman v. Conner, 76 N. Y., 121. Similarly, I think, the price actually paid for personal services, such as those of this nurse, may be considered as some evidence of the value of the work performed, and constitutes competent proof sufficient to warrant the jury in considering the item in the assessment of damages.

The judgment should be affirmed, with costs.
VAN BRUNT, P. J., and BARRETT, J., concur.

CATHERINE FAGAN, App'lt, v. CHARLES J. FAGAN, Resp't. (Supreme Court, General Term, First Department, Filed July 18, 1890.) MARRIAGE-PROOF OF, WHERE RELATION ORIGINALLY MERETRICIOUS.

Plaintiff and defendant cohabited for twenty years, the relation having originally been meretricious, and at the end of that period there is testimony that plaintiff admitted that she had never been married to defendant. It appeared that plaintiff was allowed to call herself Mrs. Fagan and defendant spoke of her as such to strangers, and sent two letters to her under that name. But plaintiff was practically excluded from the acquaintance of defendant's relations and friends, and he never showed her any attentions in the way of making visits with her or taking her to places of amusement, and their companionship was restricted to their own apartments, where he seldom was in the day-time. Held, that the use of defendant's name was essential to the comfortable maintenance of plaintiff in respectable quarters, and was not entitled to much weight in determining the actual nature of their relation; that under all the circumstances it could not be said that there was any time when the original illicit intercourse was changed to a matrimonial cohabitation.

APPEAL from judgment, entered upon the report of a referee, dismissing the complaint upon the merits.

Knevals & Ransom, for app'lt; McKenzie Semple, for resp't.

BARTLETT, J-After carefully reading the 631 type-written pages of testimony taken before the referee in this case, I am sat isfied that he reached a correct conclusion in deciding that the relation of marriage never existed between the plaintiff and the defendant.

The referee, in a well considered opinion, has discussed the facts so fully and satisfactorily, that I should only have to go over the same ground with the same result if I attempted to review

them in detail. In what I have to say, therefore, I shall merely refer to some of the leading facts tending to show that there was no marriage between the parties, and then proceed to examine the principal authorities relied upon by the fearned counsel for the appellant in the brief submitted in her behalf.

It is conceded that no ceremony of marriage was ever performed by virtue of which these persons were united to one another. The origin of the relation between them was undoubtedly meretricious. Starting with this established fact, the proof fails to satisfy me that the relation ever became matrimonial. It is true, the cohabitation was a long one, extending over some twenty years, and it may well be argued that such fidelity is rather to be expected from a husband toward his wife, than from a man to his mistress; yet we have the testimony of one of the defendant's sisters, who does not seem uncharitably disposed toward the plaintiff, that at the end of this period of twenty years the plaintiff admitted that she had never been married to the defendant, but declared that she had been better and truer to him than a great many married women would have been. The use of the defendant's name by the plaintiff, to the extent of calling herself Mrs. Fagan, was as necessary to the comfortable maintenance of the plaintiff in respectable quarters, if she was his mistress, as it would have been if she had been his wife. Without it the parties could not have cohabited at any decent abode in which other families dwelt; and too much importance, therefore, is not to be attached to the fact that the defendant thus sanctioned her use of his name. Under these circumstances it was quite natural that he should speak of her to strangers as Mrs. Fagan.

There is very little proof that he ever expressly referred to her as his wife. The two letters addressed by him from Buffalo to her in New York as Mrs. C. Fagan are the most important items of evidence on this branch of the case; but it is to be observed that if he wished to communicate with her by mail it was essential to write to her under the name by which she was known at the place where she lived, whether she was in fact his wife or merely his mistress. Taking into consideration the manner in which these people began living together; the practical exclusion of the plaintiff from the acquaintance of the defendant's relatives and friends, an exclusion to which she seems willingly to have submitted; the defendant's neglect to show her any of the attentions usual in married life, such as making calls or visits with her, or taking her to places of amusement; the restriction of their companionship to their own apartments, where he appears seldom to have been in the daytime; and the separation of the plaintiff from the defendant's social surroundings and the occupations and interests of his daily life, I find it impossible to say that there was any time when the original adulterous connection changed into a matrimonial cohabitation.

None of the cases cited on the part of the appellant require any different conclusion from that which was reached by the referee. I will discuss these cases in the order in which they occur upon the brief.

In Caujolle v. Ferrie, 26 Barb., 177, there was evidence of an express declaration by the decedent that she had been married in the time of the Revolution; and Clerke, J., said that there was no reason inevitably necessitating the presumption of illegal cohabitation in that particular case, a fact which, in my opinion, materially distinguishes it from the case at bar.

In O'Gara v. Eisenlohr, 38 N. Y., 296, the question was whether Patrick Donnery was married to Rose McKone. They frequently declared that they were married, and Donnery introduced her as his wife, and at all times during this period called her such, and so she was treated and regarded," says Mason, J. "She had in her possession a certificate of her marriage to Donnery." The differences between that case and this are too obvious to require comment.

In Bissell v. Bissell, 55 Barb., 325, there was an express agreement of marriage in the present tense, followed by cohabitation. The man placed a ring upon the woman's finger at the time of the agreement, telling her that it was her wedding ring; the parties lived together as man and wife for five weeks, and the defendant addressed the plaintiff and spoke of her as his wife. A marriage was inferred from these facts, the court saying, however, that a mere agreement to marry at a future time, followed by cohabitation, would not constitute a marriage; but the agreement proved was an agreement in the present tense, by which the parties assumed and entered into the marital relation.

The case of Hyde v. Hyde, 3 Bradf., 518, lays down the well known proposition that where the intercourse has been meretricious in its origin, there must be evidence of a change in its character, but proof of a ceremonial marriage is not indispensable to establish such a change. There is no suggestion in the present case that the plaintiff might not have proved the existence of the marital relation between herself and the defendant without any evidence of a marriage ceremony. The simple contention of the respondent is that she has not established it by proof of any kind. As Surrogate Bradford said in the case cited: "The whole matter in truth resolves itself into a mere question of evidence, and if there is enough to satisfy the mind of the court that the parties recognized new relations and held themselves out to the world as man and wife; if they, by their conduct and declarations, professed to be bound by marital ties, and thus exhibited the continuation of their cohabitation upon a different footing from what it had been formerly, the conclusion may be in favor of a marriage, although there was no formal ceremony or regular solemnization."

The question chiefly considered in Rose v. Clark, 8 Paige, 574, was whether the status of marriage existed between persons both of whom were deceased at the time of the trial. They began living together under a contract of marriage which was absolutely void, because the woman's first husband was living at the time, though the chancellor says that neither of the parties may have known that such was the fact.

After the first husband died, however, they continued to live

together as husband and wife, sustaining fair characters, for upwards of seven years. They joined in a deed of land, in which the woman was described as the wife of the man. From these and other circumstances, it was held that the surrogate was justified in inferring the existence of a valid marriage relation between the parties, entered into subsequent to the death of the first husband. Chancellor Walworth, however, is careful to point out that "the presumption of marriage only arises from matrimonial cohabitation; where the parties not only live together as husband and wife, but hold themselves out to the world as sustaining that honorable relation" and he refers to an interesting Scotch case, decided by the House of Lords, as illustrative of the kind of cohabitation from which no inference of matrimony can be drawn, although the man did, for a particular purpose, represent the woman to be his wife.

That case is Cunningham v. Cunningham, 2 Dow's Parl. Rep., 482, where it appeared that, after an illicit connection for some time, the parties cohabited in such a way as to create a repute of their being married, although such repute was described as being a divided one. The man, in order to secure lodgings with persons of respectability, and to protect the woman from rude treatment by a drunken companion, acknowledged her to be his wife. The court of sessions in Scotland inferred the existence of a marriage, but the House of Lords reversed the judgment.

In the well known case of Hynes v. McDermott, 91 N. Y., 451, which is the next in order of those cited by the appellant, it was shown that Mr. Hynes repeatedly spoke of the plaintiff as his wife, and that her relatives visited him on the footing of relatives by marriage. Nothing of this sort appears in the present case. Furthermore, it is worthy of note that the court of appeals there thought proper to state in so many words, that they were not called upon to say whether the finding of a marriage by the jury was satisfactory to them or not.

The decision of the old supreme court in Fenton v. Reed, 4 Johns., 52, is merely authority for the proposition that except in prosecutions for bigamy or actions for criminal conversation, a marriage may be proved from cohabitation, reputation, acknowledgement of the parties, reception in the family, and other circumstances. The facts in Jackson v. Claw, 18 Johns., 345, were in some respects like those in Rose v. Clark, supra. The original union of the parties was unlawful, the first wife of the man being then living but their continued cohabitation for twenty-seven years after the death of the first wife was presumptively established, their reputation of being married persons, and their good character in society, were held sufficient to warrant the inference of an actual marriage subsequent to the presumed death of the first wife.

In Clayton v. Wardell, 4 N. Y., 230, it was shown that the parties had executed articles of separation in which they were described as husband and wife, and yet the court refused to infer the existence of the marital relation from this fact, where the effect would have been to invalidate a subsequent ceremonial marriage

The execution of such an in

of the woman with another man. strument seems a much more emphatic and conclusive avowal of marriage than the sending of the two letters to the plaintiff in this suit addressed to her as Mrs. C. Fagan.

In Cunningham v. Burdell, 4 Bradf., 343, 455, the question was simply whether there had been a ceremonial marriage or not between Mrs. Cunningham and Dr. Burdell. In Betsinger v. Chapman, 88 N. Y., 487, the cohabitation was not illicit in its origin. There was a ceremonial marriage in Starr v. Peck, 1 Hill, 270, and it was held that a prior non-ceremonial marriage might be inferred. And, finally, in Badger v. Badger, 88 N. Y., 547, 553, the proof was said not to warrant the conclusion that the connection was illicit at the beginning.

Enough has been said of each of these cases to show that they are all readily distinguishable from the case at bar; and, as already intimated, I think the judgment below, on the facts, should be affirmed, unless its reversal is required by the authority of adjudicated cases.

As to the morality of the defendant's conduct in withdrawing all support from the woman with whom he had cohabited for twenty years, and who, so far as appears, was always faithful to him, I have no comment to make. That is a matter for his own conscience. Whatever we may think of it, the court cannot properly punish him by adjudging a marriage to exist where there was no marriage in fact.

For these reasons, I am in favor of affirming this judgment.
MACOMBER, J., concurs.

MICHAEL J. COLLINS, Resp't, v. THOMAS MANNING and ORVAIN HUGHES, App'lts.

(Supreme Court, General Term, First Department, Filed July 18, 1890.) MALICIOUS PROSECUTION-PROBABLE CAUSE-WHEN A QUESTION FOR THE

JURY.

In a suit for malicious prosecution, when the facts are in dispute, or where, though undisputed, they will reasonably sustain different inferences as to the existence of probable cause for instituting the prosecution, that question, as well as the question of malice, should be left to the jury, and it is error for the court to decide it as matter of law.

APPEAL from judgment entered on a verdict at circuit, and from order denying defendants' motion for a new trial.

William C. Beecher, for app'lts; William M. Mullen, for resp't. BARTLETT, J.-This is the second. appeal in this case. The facts are sufficiently stated in the opinion of the general term delivered in deciding the previous appeal. Collins v. Manning, 1 N. Y. State Rep., 193. On the first trial the complaint was dismissed, and the plaintiff appealed and procured a reversal of the judgment. On the second trial, which now comes up for review, the plaintiff recovered a judgment of $1,000 damages, and the defendants have appealed.

I think their appeal must prevail, because the trial judge took