22 Misc. 709 | N.Y. App. Term. | 1898
The law is well settled that a wife is entitled to procure what is reasonably necessary for her support and maintenance on her husband’s credit where he fails to make proper provision for her necessities, and this power continues although they may be living in a state of separation, provided such separation has not been caused by the wrongful act of the wife. This obligation thus resting upon him springs out of the marital relation, and is one of the duties which the law declares must be assumed by the
In the case at bar, the plaintiff furnished the defendant’s wife with certain articles of attire some three months after she had abandoned him; The evidence with respect to the grounds for the abandonment is of the most general character. She says that she left the défendant, to use her own words, “ on account of his utter indifference and neglect which I could not stand any longer. While mv father or grandfather lived I was his pet. At his death it was more than I could stand to have to live with Mr. Brower who never paid any attention to me, and I simply .left him on my own accord because I could not stand it any longer. I left of my own accord.” There was no claim of any physical violence, threats or specific misconduct of any kind. It is quite plain that this was not sufficient ' to justify this wife in her abandonment. . As is said by Professor Schouler: “ The wife should have weighty and sufficient cause for
It is contended, however, that the plaintiff may still recover on the ground of an agency in fact, apparently vested in the wife by the previous conduct of the defendant, upon which the plaintiff was entitled to rely, in the absence of knowledge of the separation. It is, of course, true that where the husband has constituted the wife his agent in the purchase of supplies, be the form of such sanction what it may, the familiar rules of agency apply, and his liability then rests upon the determination of a mere question of fact, and is based upon grounds quite different from those which we have just considered. 9 Am. & Eng. Enc. of Law, 832. Where his previous conduct has been such as to support the inference that his wife was entitled to purchase on his credit, he is deemed to have vested her with an appearance of- authority in that regard, upon which an innocent third party, acting in good faith and without knowledge of the separation of the parties, may rely in subsequently furnishing the wife with supplies.
The facts before us, however, do not seem to bring this case within the rule laid down. While it appears that the defendant’s-wife had dealt with the plaintiff before she abandoned her husband, it does not appear that the defendant knew the fact, or that any bill for any articles so purchased had ever been rendered to- him, or that be ever personally paid the plaintiff any money on account of any such indebtedness. On the contrary, the proof shows that whatever the wife obtained she paid for herself in bills, and the record is barren of any evidence showing any act on the part of the defendant on which an agency in fact Can be predicated. That the defendant supplied his wife with money with which to provide for herself does appear, but nothing more. The case of Hartjen v. Ruebsamen, 19 Misc. Rep. 149, is referred to by the counsel for the plaintiff. But in that case the court held that the defendant wras liable because, after the separation, he personally paid to the plaintiff a bill, which had been previously incurred by the wife, without advising the plaintiff that she no longer had any authority to incur any further liability on his account. It was held that an
The judgment of the court below must, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event. ■
- Gildebsleeve and Giegebich, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.