185 A.D. 114 | N.Y. App. Div. | 1918
The recovery was on the second count of the complaint, ;which is for goods furnished as necessaries to the defendant’s wife on his credit. The defendant was married on the 11th day of June, 1902, at Middletown, N. Y., but he and his wife resided at the village of Watkins, N. Y. The goods were furnished and delivered on the 20th, 21st, 23d, 24th and 27th days of March, 1916, at New York and Mid etown. The defendant and his wife were living together at the time, although their relations apparently were strained. He maintained a house where they resided at Watkins, and necessary servants and suitably supplied their living necessaries. On the date of the last purchase from plaintiff, the defendant’s
There is no evidence, other than the items of the bill of goods and general testimony given by the defendant’s wife to the effect that they are of the character of goods which she had purchased and used during her married life with defendant, bearing on the issue as to whether the goods were necessaries. She was not asked with reference to the quantity or condition of goods of this character which she had previously purchased and had on hand at the time. The record is barren of any evidence tending to show that she was in need of any of these goods at the time, and it may be observed that she could not have been in need of all of them, for in many instances she purchased a great number of the same article. In that connection it may also be observed that the pinchases of March twentieth embrace six pairs of gloves and six pairs of hose, and eighteen pairs of hose on the next day. At the close of the evidence a motion was made for a nonsuit and the court reserved decision thereon, and stated that by consent of counsel a special verdict would be taken on three questions. The first was whether defendant offered his wife twenty dollars a month for the purchase of her own wearing apparel in December, 1915, the second as to whether such offer was sufficient, and the third, as to whether, on the assumption that he did not offer his wife a suitable allowance, these goods were necessaries. The jury found that he did
This failure to follow the prescribed practice has resulted in some confusion and a considerable part of the points on each side is devoted to the question as to whether or not any of the findings of the jury are reviewable, there having been no motion for a new trial and no appeal from an order, the only appeal being from the judgment. Under the former practice that would' have been a perplexing question, but since section 1346 of the Code of Civil Procedure now authorizes a review on the facts as well as on the law on an appeal from a judgment, if it were necessary the defendant would be entitled to have the weight of the evidence reviewed, but we are of opinion that the plaintiff did not prove a prima facie case for the consideration of the jury on the issues as to whether the allowance of twenty dollars a month was sufficient or whether these goods were necessaries. It is the well-settled law in this jurisdiction that a husband is not liable even for necessaries furnished his wife where they are living separate and apart through no fault of his and the wife refuses his offer to support her at home (Constable v. Rosener, 82 App. Div. 155; affd., 178 N. Y. 587; Ogle v. Dershem, 91 App. Div. 551, 552; Bloomingdale v. Brinckerhoff, 2 Misc. Rep. 49; cited with approval in Wanamaker v. Weaver, 176 N. Y. 75, 79; Wolf v. Schulman, 45 Misc. Rep. 418), but that where they are living together the wife has implied authority to charge the credit of her husband with necessaries in the absence of notice by him to the shopkeeper forbidding such credit, and it suffices if the goods are of a class that would ordinarily be necessary in view of the station in life of the husband and wife without evidence that they were actually necessary, and the husband is liable, if the credit was intended to be given to bim even though the goods were charged to the wife, and in such case the burden is on the husband to show in defense that he had fully performed his duty to furnish necessaries
It follows, therefore, that the judgment should be reversed, with costs, and the findings inconsistent with these views
Clarke, P. J., Dowling, Page and Merrell, JJ., concurred.
Judgment reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.