Grunhut v. Rosenstein

7 Daly 164 | New York Court of Common Pleas | 1877

Van Hoesen, J.

If the defendant had not, subsequently to» the time he demanded of his wife and the plaintiff the possession of the children, consented that the status in quo should be preserved during the habeas corpus proceedings, I should have no hesitation in saying that the plaintiff could not maintain this action; but, by consenting to preserve the status in quo, he agreed to continue the arrangement under which his wife and children were boarding and lodging with the plaintiff,, and until the habeas corpus proceedings are terminated in some way, he will be liable to. pay for necessaries for the children whilst in the custody of the mother. (Grill v. Read,. 5 R. I. 343.)

A husband is not liable for money lent to his wife, unless-his request be averred and shown (2 Kent, marg. p. 146, citing 7 Taunton, 432). In this case it appears that the payment of servants) wages by the plaintiff was nothing more than a loan of money or an advance to the wife. Furthermore, the-evidence shows that a nurse was not necessary for the wife of the defendant or for the children. The tihildren were twelve, nine, and eight years old; they went to school, were very regular in their attendance, and were in ordinary .health; neither of them required a nurse, nor was a nurse-employed in consequence of the bodily infirmities of the children ; Mrs. Rosenstein was well able to take care of them,, and the only excuse offered for the employment of a nurse-is that Mrs. Rosenstein was frequently away from home of" afternoons, looking after her lawsuit with her husband. During school hours the children were at school; and the-plaintiff’s claim is, I suppose, that a nurse was needed to-receive the children on their return from school when the-mother chose to be away from home. The nurse did not sleep -on the same floor with the children, never knew they were ailing, and is not shown to have had any duties to-perform with respect to them; what work she did whilst the-children were at school is not shown, though from the fact that the plaintiff employed her, I think it not unfair to conclude that she was doing domestic service about the house. It would be doing no violence to the testimony to infer that the presence of Mrs. Rosenstein and her children in his house made it necessary for the plaintiff to employ an extra servant, who was styled the nurse, in order that the defendant might be called on to pay her wages. The defendant is a man of little or no means. There is a good deal of evidence in the case respecting a multitude of bills against the defendant which the plaintiff has presented. It seems that though the children were all the time well enough to go to school, the plaintiff has charged more than one hundred dollars per month for medical attendance upon them; not satisfied with this, a Dr. Elliot, who occupies the office with him, has also a bill for medical attendance. The plaintiff has presented other bills, making an average of nearly six hundred dollars per month, for board, lodging and medical attendance furnished Mrs. Rosenstein and the children. A husband and father is bound to furnish necessaries to his wife and children, but it is for the court to say what are and what are not necessaries. Under the circumstances of this case, I am satisfied that a nurse was not necessary. I waive observations respecting the lona jides of the plaintiff in his claims against the defendant.

The judgment should be modified by deducting $78, the amount of plaintiff’s advances for nurse’s wages, and, as modified, should be affirmed without costs of appeal.

Charles P. Daly, Ch. J., concurred; Joseph F. Daly, J., dissented.

Judgment modified in accordance with opinion, and, as modified, affirmed.