121 Misc. 181 | N.Y. App. Term. | 1923
Appeals from judgments, one for $250 and costs, and the other for $500 and costs.
Defendant’s wife brought a suit against him for a separation. Upon what grounds does not appear. At ■ the time of the com-.
In Warner v. Heiden, 28 Wis. 517, a husband who had prosecuted
In Artz v. Robertson, 50 Ill. .App. 27, a recovery was permitted for legal services rendered to a wife who had been apprehended on a charge of murder. The husband had refused to sanction the employment of the plaintiffs and had refused to engage other counsel. The same case was before the same court in Robertson v. Artz, 38 Ill. App. 593, at which time the question was raised on a demurrer to the declaration. In the earlier report the court clearly held that the husband was liable for such legal services where it was alleged and the presumption existed that she was innocent of the great crime with which she stood charged. The case proceeded upon the theory that it was the duty of the husband to stand by the wife who was in such serious trouble on- account of a criminal charge of which she was not guilty.
Porter v. Briggs, 38 Iowa, 166, was an action brought for professional services rendered by the plaintiffs in defending a wife in an action brought by her husband for a divorce on the ground of adultery. In light of the decision in Naumer v. Gray, 28 App. Div. 529, which will be considered later, it will not be necessary to consider this case further than to refer to this dictum of the court (at p. 168): “ It can hardly be doubted that if a wife is charged in a legal proceeding by a stranger, with the crime of adultery, the husband would be liable for all necessary expenses incurred in establishing her innocence. His liability would rest in such a case on the ground that the expenditure was demanded for her comfort and happiness. The law .looks to and regards her rights in securing her protection, and it is not given because of anything the husband may suffer when they are invaded.” Of course, under such circumstances the marital relationship would be seriously involved and it might be said to be the duty of the husband to do all in his power to maintain the good name of his wife and thus the integrity of the marital relationship.
In Morris v. Palmer, 39 N. H. 123, it was held that whenever it is necessary, for the safety of a wife, to enter a complaint against her husband for a breach of the peace, the legal costs of the proceeding may be recovered of him by action, upon the ground that the services rendered were necessaries furnished to the wife for her protection. It will be noted, of course, that it was the husband’s own act which made the legal services necessary.
Save, therefore, in the case of Robertson v. Artz, 38 Ill. App. 593, where it was expressly decided, and in the dictum in Porter v. Briggs, 38 Iowa, 166, no case has been submitted which holds that the husband is liable for legal services rendered to a wife in a criminal prosecution against her or in civil proceedings where the services were not made necessary because of the acts of the husband.
In Shepherd v. Mackoul, 3 Campb. 326, the husband had without just cause turned his wife out of doors with great violence and she exhibited articles of the peace against him, prepared by the plaintiff, an attorney. It was held that if there was necessity for exhibiting articles of peace against the husband, “ she carried along with her a credit for whatever her preservation and safety required.” It also appeared that services had been rendered to her upon a charge
In Moran v. Montz, 175 Mo. App. 360, a husband, who was in prison at the time, was held liable for legal services rendered in procuring the commitment of his wife to an insane asylum. Such commitment was a necessary for her safekeeping. The court stated that “ Notwithstanding the statutes placing married women on an equality with single women as to their separate property and property rights, the common law duty of a husband to provide his wife with what are termed necessaries remains unimpaired, * * * that legal services which are indispensable to securing the admittance of an insane woman to an asylum for the insane and for the performance of which there is an immediate and most exigent necessity should also be classed as necessaries.”
In Mulligan v. Mulligan, 161 Ky. 628, legal services were rendered to a wife in connection with the protection of her dower right under a trust estate created by her husband, and the court say with reference to those legal services: “While it was proper, if she so desired that Mrs. Mulligan should be represented by counsel in this cause, we are of the opinion that such representation cannot be classed as one of those necessaries for the wife for which the statute renders the husband liable.” The Kentucky statutes provide for the liability of the husband for his wife’s necessaries.
In Peaks v. Mayhew, 94 Maine, 571, a wife willfully deserted her husband without his fault; while separated she was indicted and tried on a criminal charge, as to which a jury disagreed. It was held that she had no authority to pledge her husband’s credit for the legal services of counsel who knew of the separation. The case was decided upon the theory that a wife who willfully leaves her husband has no right to pledge his credit for even necessaries. After reviewing some of the authorities touching upon the liability of the husband for legal services, the court (at p. 577)
In Wilson v. Ford, L. R., 3 Exch. 63, it was held that legal expenses incurred by a deserted wife incidental to a suit for restitution of conjugal rights, in obtaining counsel's opinion on the effect of an ante-nuptial agreement for a settlement, in obtaining professional advice as to the proper mode of dealing with tradespeople who were pressing her to pay them for various necessary articles supplied to her after she had been deserted, and of preventing distress threatened on furniture belonging to her husband in the house she occupied, are necessaries for which she has implied authority to pledge his credit. As to the first item, of course, it is similar to legal services rendered in an action brought by the wife against the husband for desertion, in accord with which is Naumer v. Gray, 28 App. Div. 529. As to counsel's opinion on the effect of an ante-nuptial agreement for a settlement, the court held that this obligation was incurred in order that she might ascertain whether or not she was entitled, under the settlement, to any money which she could apply to her own maintenance after desertion. It was held that it was a necessary expense. It was also held as to the third item that it was a proper course for the wife to take to consult her attorneys before allowing the tradesmen to sue her personally for necessaries bought after she had been deserted. The court said that she might have been liable herself in equity for some of the articles supplied had she possessed a separate estate and this expense was reasonably incident to her condition and circumstances. As to the threatened distress on her husband's furniture, the court held what she did was really a duty she owed to her husband to protect his goods. Here it clearly appears in each instance that the expenses incurred by the wife were incident to her husband’s desertion of her.
Naumer v. Gray, supra, came before the court upon an appeal from a judgment entered upon a dismissal of the complaint. The action was brought to recover the value of legal services rendered to the wife of the defendant, in the institution and prosecution of an action by her against him for a separation upon the ground of cruel and inhuman treatment. It was held that an action could not be maintained. The court, by Cufien, J., reviewed the authorities in connection with legal services rendered to a wife in matrimonial actions, and at the outset of the opinion it was said fat, p. 530):
I think the statement made in Robertson v. Artz, 38 Ill. App. 593, 610, where the services were rendered to the wife charged with murder, may be applied here: “ It is the duty of the husband to support and maintain his wife and children, to provide them a home, to feed and clothe them, to care for them when sick, to protect them living and to defend them in their persons and character, and in general to do and furnish for them in all respects what is reasonable and appropriate for them to have and enjoy, according to his station in life and his ability to furnish such things. The law never has nor never can sit down in order and give a name to a limited schedule of things which shall be necessary for a wife or child. The list must be left open and enlarged or limited
While a married woman to-day stands before the law almost on an equal footing with a married man, yet he still is her protector and provider. It is true that she controls her own real and personal property (Dom. Rel. Law, § 50), as to all rights in respect thereof, and the power to make contracts with respect thereto, even with her husband (Id. § 51); and her contracts do not bind her husband (Id. § 55); she has a right of action for an injury to her person or property, and is liable for her wrongful or tortious acts, and the husband is not liable therefor unless they were done by his actual coercion or instigation (Id. § 57); she has a right to all wages, salary and profits for which she may render work, labor or services, unless otherwise agreed (Id. § 60); a married woman is a joint guardian of her children with her husband, with equal powers, rights and duties in regard to them (Id. § 81), nevertheless, respo sibility continues to rest upon the husband to provide and care for her, in accordance with their station in life. The spirit of progress stated by Crane, J., in Oppenheim v. Kridel, 236 N. Y. 156, “ The common law is not rigid and inflexible, a thing dead to all surrounding and changing conditions, it does expand with reason. The common law is not a compendium of mechanical rules written in fixed and indelible characters, but a living organism which grows and moves in response to the larger and fuller development of the nation,” has not yet released the husband from providing his wife with necessaries, as he always has provided. It seems to me where a wife, without any fault or wrong on her part, and being innocent of the charge, is prosecuted criminally or sued civilly whereby her liberty
Turner v. Woolworth, 221 N. Y. 425, was an action brought for services of an attorney in excess of the amount that was allowed by the court for counsel fees in a matrimonial action. There was a finding in the case that the true value of the services was greatly in excess of the award, and this is said by the court: “ On motion of the wife in the divorce suit and again in the suit for separation, the court fixed the fees which the husband was to pay. She chose her tribunal and her remedy. The award then made became, with the costs of the action, the measure of her rights and of her husband’s obligation. There was ample power to increase the award, if thereafter it appeared to be inadequate. That power, indeed, was exercised, and there were new orders from time to time. But until increased, the award was final. Counsel were no longer at liberty, disregarding the limit of the orders, to hold the husband to his common-law liability for necessaries furnished. We do not say that such relief would be denied if the wife had made no motion and obtained no order (Naumer v. Gray, 28 App. Div. 529, 534; Horn v. Schmalholz, 150 App. Div. 333). That question is not before us. She invoked a summary remedy, and must abide by the result. The power to award counsel fees is regulated by the same section of the Code which authorizes the award of alimony (Code Civ. Pro. § 1769). The rule is that alimony, when allotted, measures the husband’s duty of support (Crittenden v. Schermerhorn, 39 Mich. 661, and cases there cited; Hare v. Gibson, 32 Ohio St. 33; People ex rel. Comrs. of Charities v. Cullen, 153 N. Y. 629, 637). The liability for counsel fees can be no broader (Naumer v. Gray, supra). Any other conclusion might lead in practice to gross abuses. There would be little end to litigation if such orders settled nothing.” It seems to me that this would be decisive of plaintiff’s claim were it not for an inference that might be drawn from part of the court’s language where it is stated: “ The rule is that alimony, when allotted, measures the husband’s duty of support.” The thought behind that might be that there must be an allotment of alimony. Here there was no such award.
In People ex rel. Comrs. of Charities v. Cullen, 153 N. Y. 629,
In Bishop on Marriage, Divorce and Separation (Yol. II, § 838) it is said: “ As a provision for the wife, alimony judicially decreed is within this principle; if regularly paid, it protects the husband against her debts, and the further effect of the decree is to render it conclusively sufficient in amount. And this doctrine extends even to the mere order of the court for temporary alimony during the pendency of a divorce suit,— it matters not to the husband’s protection whether in fact the amount was adequate to the wife’s needs or not. If it is not paid, the order will furnish him no protection.”
In Schouler on Marriage, Divorce, Separation and Domestic Relations (6th ed. vol. 1, p. 131) the author sets forth the rule as follows: “ Where the divorce court takes jurisdiction for the purpose of legalizing a separation of spouses, judicial action upon the wife’s support changes the state of the case. Alimony now becomes the regular standard of allowance for necessaries; and hence the payment of alimony, even if actually insufficient for the wife’s maintenance, will discharge the husband from further liability for her support. The same is true where the wife has' been denied alimony. If the alimony be insufficient, the wife should induce the court to increase it. But the husband is liable for necessaries supplied to the wife before alimony is decreed, even although, as it is held, the decree afterwards direct the alimony to commence from a day preceding the supply of the necessaries.
In Simpson v. Dutcher, 123 N. Y. Supp. 340, in an opinion by Bischoff, J., it is stated: “ The answer sets up as an affirmative defense that prior to the time when the necessaries were furnished an action had been commenced by defendant against his wife for an absolute divorce, that her motion for alimony had been denied, and that the action is still pending. The reply only denies knowledge or information sufficient to form a belief about it. A wife, who has been denied alimony by this court, cannot collect it in a roundabout way, by borrowing from a friend and having him sue the husband.” See Damman v. Bancroft, 43 Misc. Rep. 678.
From these authorities the conclusion necessarily follows that this plaintiff was not entitled to recover. The reason, too, for the conclusion is undoubtedly correct. While it is the husband’s duty to furnish his wife with necessaries, and where he wrongfully fails to do it the third party furnishing them may recover, yet where the parties have submitted their differences to the court, and under the statute the court has made, or has refused to make, a provision for maintenance, the adjudication determines the liability of the husband, whatever it may be. Here the court said that it was not the duty of the husband to take care of his wife. The reasons for it do not appear. The testimony that she had the use of the house and the husband had made arrangements to supply her with foodstuffs may have decided the court in that connection. But whatever the reason was, the order was the measure of the husband’s liability. If it should be claimed that one in good faith, without notice of such an order, might be justified, when the wife is in need, in furnishing her with necessaries, no such claim could be made here because the plaintiff knew the entire situation.
Judgments unanimously reversed on the law, with fifteen dollars costs in each case, and judgments directed for defendant dismissing the complaints, with appropriate costs in the court below.
Cropsey and Faber, JJ., concur.
Judgments reversed.