129 N.Y.S. 587 | N.Y. App. Div. | 1911
The facts'as alleged in the complaint upon which the plaintiff demands relief are as follows: Plaintiff and defendant were married prior to September 1, 1904. There were three children of the marriage, who on that date were all infants, the eldest becoming of age on the 12th day of December, 1906, and the second becoming of age on the 25th day of December, .1909, and the third is still a minor. On or about the 1st of September, 1904, defendant without cause abandoned the plaintiff and their said children, who were then infants, and left them without any means of support, and has at no time since contributed anything towards their support except the sum of
It is well established that, although at common law a wife could not borrow money for necessaries so as to bind the hus- ■ band,- yet in equity a person supplying money to the use of the wife for necessaries furnished to her would stand in the place of the person who found and provided such necessaries for the . wife, and as the persons furnishing the necessaries for the wife would be creditors of the husband, so a person lending the 'money to be paid to the persons furnishing such necessaries stood in their place and was a creditor of the husband also. (Harris v. Lee, 1 P. Wms. 482.) In Jenner v. Morris (3 DeG., F. & J. 45) this case was approved as stating the law of England. Lord Campbell, L. Oh., said: “Nevertheless, it has been laid down from ancient times that a court of equity will allow the party who has advanced the money which was proved to have been actually employed in payment for necessities furnished to the deserted wife to stand in the shoes of the tradespeople who furnished the necessaries and to have a remedy for the amount against the husband.”
It follows that, as the husband was under the legal obligation to furnish necessaries for his wife and infant children (see
The question presented in this case is, when the husband deserts the wife and there is a legal adjudication requiring the husband to furnish the wife a sum of money for the support of herself and the infant children, and the wife from her separate estate furnishes the money necessary for the purchase of the necessaries, whether the wife will have a cause of action against the husband.
Undoubtedly at common law this action could not be maintained, because the personal property of the wife and her earnings belonged to the husband. But this rule has been changed in this State by a series of enactments that were finally revised and re-enacted in the former Domestic Relations Law (Gen. Laws, chap. 48; Laws of 1896, chap. 272). Section 20 of the former Domestic Belations Law provided that property, real or personal, owned by a married woman, or thereafter owned by a woman at the time of her marriage, or acquired by her, should continue to he her sole and separate property as if she were unmarried, and should not be subject to her husband’s control or disposal or liable for his debts. Section 21 thereof provided that a married woman has all the rights in respect to property, real or personal, and the acquisition, use, enjoyment and disposition thereof, and to make contracts in respect thereto with any person, including her husband, and to carry on any business, trade or occupation, and to exercise all powers and enjoy all rights in respect thereto and in respect to her contracts, and be liable on such contracts, as if she were unmarried; but that a husband and wife cannot contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife. Section 27 thereof provided that a married woman has a right of action for an injury to her person, property or character or for an injury arising out of the marital relation, as if unmarried. Section 450 of the Code of Civil Procedure (as amd. by Laws of 1890, chap. 248) provided that all sums that might be recovered in actions or special proceedings by a married woman to recover damages
The husband thus being under a legal obligation to support his wife and infant children, and having deserted them without providing for their support, he is liable for necessaries furnished for that purpose.- In equity he would be hable to any one advancing the money necessary to pay the persons who had furnished such necessaries. The wages or - compensation paid to the wife for services which she had rendered being her separate estate and belonging to her, I cannot see that she is in any different position from any other person who had advanced money to perform the obligation of the husband for the support and maintenance of his wife and' infant children, especially after that obligation had been judicially determined by an order requiring the defendant to furnish- six dollars a week for the maintenance of his wife and infant children. The plaintiff has devoted her own separate estate to the performance of the obligation which was assumed by the husband upon his marriage, and his liability to perform that obligation having been fixed by the order of a court of competent jurisdiction, I can see no reason why the defendant should not be hable to her for the amount thus expended.
The learned justice at the Special Term has reviewed the authorities on this subject (69 Misc. Rep. 472), and it is" not necessaiy to répeat what he has said. But for the reasons here
McLaughlin, Scott, Miller and Dowling, JJ., concurred.
Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs in this court and in the court below.