| NY | Apr 24, 1877
Upon the merits of the action the report of the referee, based upon evidence sufficient to sustain it, although there was a conflict in the testimony, is conclusive. The referee has found that encouraged by the plaintiff, the wife of the defendant left him against his will, and without justifiable cause, and went to live with the plaintiff, her mother; that the defendant was able and willing to furnish his wife with proper and suitable maintenance if she would live with him, and that he at no time requested the plaintiff to board or care for her, and never promised to pay for her board and maintenance, separate from him. Under such circumstances the plaintiff has no cause of action against the defendant for board or other necessaries furnished the wife.
The learned counsel for the appellant, however, claims that the plaintiff should have recovered for the board of the wife during the pendency of the action for a divorce instituted by her, and for expenses incurred for medical attendance. There can be no error alleged upon this record by reason of the omission of the referee to allow either of these claims. 1st. The referee was not asked to segregate those charges from the entire claim massed in the account produced and in the evidence and to allow them, or to find facts which would justify a recovery for them. 2d. There is no evidence that the plaintiff was paid, or incurred any expenses for medical attendance; on the contrary, the evidence is that the defendant has paid all that he was called upon to pay, and so far as appears all that was or is to be paid. 3d. After *396 the commencement of the action for a divorce there is no evidence that the defendant was called upon, or refused to supply his wife with necessaries, and had the wife desired support pendentelite her remedy was by application for alimony, and there is no implied promise of the defendant to pay for necessaries furnished during that period. The board of the wife by the plaintiff during this time was but the continuance of the voluntary support furnished by her, as found by the referee. 4th. By the judgment in the action for a divorce the defendant was condemned to pay alimony to the wife from the commencement of that action. Under the peculiar circumstances of this case as reported by the referee, that should absolve the defendant from all claim of the plaintiff for the board of the wife during that period, and she should look to the wife, her daughter.
The judgment must be affirmed.
All concur, ANDREWS, J., absent.
Judgment affirmed.