100 Misc. 48 | N.Y. Sup. Ct. | 1917
The defendant moves for a new trial and to set aside the verdict of $1,001. found by a jury against him at a Trial Term in favor of the plaintiff. The plaintiff’s mother, a widow with several children, living at Mechanicville, married the defendant. He lived with her but a short time and then abandoned
It is not contended but that as a general rule a legal liability exists against a husband to pay for necessaries furnished his wife whom he has abandoned or deserted. De Brauwere v. De Brauwere, 203 N. Y. 460.
It is contended, however, on behalf of the defendant that the plaintiff was obliged to support his mother to the same extent that defendant was liable to support her as his wife; that the support which the plaintiff gave his mother was voluntary and without demand on the defendant for the same and, therefore, as matter of law the plaintiff cannot recover and the verdict must be set aside.
No question is made in this case but that the support furnished was necessary for the maintenance of the wife. As the defendant was under a legal obligation to support his wife, any person who furnished her necessary support is deemed to have conferred a benefit on him and the law in such case implies a promise on his part to pay therefor. The burden then was cast upon the defendant to excuse himself for his failure to furnish her necessary support and this the jury have found he did not do. As there was an implied promise on defendant’s part to pay for the necessary support of his wife, it was not essential to the right of any one furnishing it, to recover from defendant the value thereof, that he should demand of defendant that the latter support his wife before such support was furnished. Wickstrom v. Peck, 155 App. Div. 523; 163 id. 608; Hardy v. Eagle, 25 Misc. Rep. 471.
The liability of a child to support the parent in this
It is further urged that the plaintiff in the absence of a special promise by his mother to pay him for her support had no claim against her or her estate and he, therefore, can have no claim against another. More v. Shepard, 133 App. Div. 473; Williams v. Hutchinson, 3 N. Y. 312. Here the claim is made by the plaintiff through his mother not because she was his mother but because the defendant was liable for her support and he was not. As the plaintiff was under no legal obligation to support his mother, his right to recover is the same as though he were a stranger to her suing defendant for her support.
There seems to have been no case presented to the courts similar to the one at bar. The nearest in prin
The motion for a new trial is, therefore, denied.
Motion denied.