75 N.Y.S. 726 | N.Y. App. Div. | 1902
In this action it is sought to compel the defendant to pay for certain goods furnished to his wife, now deceased, by the plaintiff.
Accordingly, on the present trial, the plaintiff was allowed to introduce evidence to show the circumstances under which the goods were purchased by defendant’s wife, and that for the most part they were necessaries, and the defendant to meet such proof gave evidence that at the time the goods were sold he was living apart from his wife, having arranged through his attorney to pay her an adequate allowance for her support and the support of his children living with her. At the close of the case the learned trial judge submitted to the jury the following questions: “ First, as to whether Leonard and his wife were living apart by mutual agreement; second, whether he made her an allowance ; third, if he made her an allowance whether that was commensurate with his means; fourth, whether the plaintiff knew or had reason to know that they were separated and that he was making her this allowance; and, fifth, as to whether all or any part of these goods were necessaries.” And the court then charged: “ If you find that there was- a separation and that the separation was by mutual consent of the defendant and his wife and not on his part alone without hers; that the defendant had made an allowance to his wife for maintenance and support; that such allowance was suitable and reasonable to her mode of living and her station in life, and that the plaintiff knew or had cause to know of such agreement to live separate and apart with such suitable allowance, you will find for the defendant But if you fail to find any one-of these matters you will find a verdict for the plaintiff for such an amount as you decide is due for necessaries.”
The portion of the charge relating to knowledge on the part of the plaintiff of the separation and allowance, which was thereafter excepted to by the defendant, was emphasized by the refusal of the court to charge the defendant’s request “that if the jury are .satis
If in this respect the charge was erroneous, then there must necessarily be a reversal of the judgment, for the only inference that could be drawn from the testimony adduced was that the plaintiff knew nothing of any separation between Mr. Leonard and his wife nor of the making of any allowance. Under such circumstances, therefore, the charge of the court was equivalent to a direction of a verdict in favor of the plaintiff.
As to the materiality of the knowledge of a tradesman of the separation of husband and wife, the rule, we think, is well Stated in Bloomingdale v. Brinckerhoff (2 Misc. Rep. 49). Therein it was said: “ That irrespective of whether or not the person who supplies the wife with necessaries had knowledge at the time of the husband’s provision for her support, the presumption of the wife’s authority 'to pledge her husband’s credit- is negatived by the' fact of their .living apart, and' that the tradesman who supplies her under such circumstances upon the credit of her husband and without his express.; sanction or approval, does so at his ovm peril, are propositions too well established by authority to admit of further dispute. (See the rule stated and the cases collated in Hare & Wallace’s Notes to Manby v. Scott, Montague v. Benedict and Seaton v. Benedict, reported in Smith’s Leading Cases, 436, etc.;
The burden placed by the court in the present case upon the defendant of showing, in order to. absolve himself from liability, that the plaintiff knew, or had reason to know, that the defendant -and liis wife were living apart and that he was making a suitable 'allowance for her was one, in our opinion, which the defendant was not -obliged to bear ; and were it a true proposition of law, then upon the facts here appearing, a direction of a verdict for the plaintiff would have been required because the proof amounts to a demonstration, with no opposing evidence, that the plaintiff did not know of the separation, nor did he make any inquiries upon the
Van Brunt, P. J., Patterson and Laughlin, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.