152 A.D.2d 73 | N.Y. App. Div. | 1989
OPINION OF THE COURT
Defendant is the surviving spouse of decedent, Edward Frey,
Plaintiff’s sole argument on appeal is that County Court erred in holding that defendant did not have an obligation under the common-law doctrine of necessaries to pay for the services rendered to her husband. Defendant maintains that the common-law rule only requires a husband to pay for his wife’s necessary support items. In any event, defendant argues that plaintiff’s theory of recovery before County Court was based primarily on statutory authority and that plaintiff should not be allowed to utilize another theory of recovery on appeal.
Initially, we disagree with defendant that plaintiff failed to raise the issue of the common-law doctrine of necessaries as a theory of recovery in its pleadings. Both plaintiff’s bill of particulars and affidavit in opposition to defendant’s cross motion sufficiently raise this issue as is evidenced by the fact that County Court saw fit to rule on the issue.
Turning to the issue at hand, we note that plaintiff makes no constitutional challenge to the common-law doctrine of necessaries but argues only that this court should hold that the traditional doctrine should be expanded on policy grounds to impose a reciprocal obligation on both spouses, rather than solely imposing the obligation upon the husband which has been the traditional rule (see, 47 NY Jur 2d, Domestic Relations, § 662, at 65).
The doctrine itself stems from the common-law disability of a married woman to contract (47 NY Jur 2d, Domestic Relations, § 688, at 92) and comported from the traditional family structure of the husband as sole breadwinner and the wife as full-time homemaker (see, Mahoney, Economic Sharing During Marriage: Equal Protection, Spousal Support and the Doctrine
Given the policy behind these statutory amendments, the question now distills to whether the common-law doctrine of necessaries should be changed. The Court of Appeals in Lichtman v Grossbard (73 NY2d 792) recently declined to consider this issue because it was raised for the first time on appeal. The court specifically recognized that it expected an opportunity to rule on the issue in the future. It was noted in the decision, however, that Judges Hancock and Titone favored reaching the merits and effectuating a change in the rule; the former by expanding it, and the latter by abolishing it altogether as outdated (supra, at 795). It is our view, in keeping with that of Judge Hancock, that the doctrine should be expanded to impose a reciprocal obligation on both spouses because this would, inter alia: "reflect the modern view of marriage as an economic partnership, would be consistent with the policy underlying the current support laws and would continue to encourage retail consumer creditors to supply nonworking spouses with credit” (supra, at 795).
Our adoption of the view that the doctrine must be expanded, however, does not end our inquiry in this case. Under the traditional doctrine, a creditor seeking to recover from a husband necessaries furnished to a wife has the burden of proving that the necessaries were furnished on the credit of the husband (see, Star Vacuum Stores v Bisslessi, 192 Misc 807), although a presumption on that point does exist (see, Saks & Co. v Nager, 74 Misc 2d 855) in the creditor’s favor (see, 47 NY Jur 2d, Domestic Relations, § 667, at 72). In addition, the doctrine also holds a husband legally responsible for the medical expenses of his wife only insofar as they are commensurate with his means (see, Amplo v Di Mauro, 52 Misc 2d 810, 813; 47 NY Jur 2d, Domestic Relations, § 696, at 102). We note that County Court never reached the issue as to
Casey, J. P., Weiss, Levine and Mercure, JJ., concur.
Order modified, on the law, without costs, by reversing so much thereof as granted defendant’s cross motion for summary judgment; cross motion denied; and, as so modified, affirmed.