M'Gahay v. Williams

12 Johns. 293 | N.Y. Sup. Ct. | 1815

Per Curiam.

This case comes before the court on a certiorari to a justice’s court. The suit in the court below was for necessaries furnished MtGahay,s wife. There was some controversy as to the marriage; but that ground was finally abandoned by the defendant below, and the marriage admitted; and the only question was as to the liability of M‘Gahay to maintain his wife. In the case of M'Cutchen against the same defendant, (11 Johns. Rep. 281.) we adopted this principle: That if a woman leaves her husband, and lives separately from him, he is not liable to her contracts for necessaries, although the person giving credit to her does not know of the elopement; but if she offers to return, and her husband refuses to receive her, his liability to her contracts for necessaries revives from that time. If a husband turns away his wife, he gives her a credit, wherever she goes, and must pay for necessaries furnished her. Applying these principles to the facts stated in the return, in this case, the liability of the defendant below for the maintenance of his wife is revived. Although she appears to have left him voluntarily, and without any sufficient cause, yet. she has repeatedly offered to return. Harris, in his testimony, states, that shortly after the separation, he, at the request of the defendant’s wife, went to him more than twenty times, and requested him to let his wife return, which he utterly refused. He did not pretend to question the authority of the witness, or that he came at the instance of his wife, but put his refusal upon a totally different ground. It must, therefore, be deemed equivalent to a personal application by the wife herself, and a denial by her husband to permit her to return; which brings the case precisely within the principle adopted in the former decisión. The judgment of the court below must, accordingly, be affirmed.

Judgment affirmed.