148 N.Y.S. 596 | N.Y. App. Div. | 1914
Lead Opinion
This is an action by a tradeswoman against a husband for dresses supplied to defendant’s wife, and which in the complaint are alleged to have been necessaries.
The husband did not avail himself of the opportunity to show (if he could) that his wife had already been furnished by him With articles of the same character as those furnished, or that he had supplied her with sufficient means to meet her necessities. These were matters of defense. (Wanamaker v. Weaver, 176 N. Y. 75; Wickstrom v. Peck, 155 App. Div. 523.)
The judgment appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.
McLaughlin, Dowling and Hotchkiss, JJ., concurred; Ingraham, P. J., dissented.
Dissenting Opinion
The complaint in this action alleges that between the 1st day of October, 1901, and the 30th day of June, 1907, at the city of Hew York, the plaintiff furnished to Josephine W. Peck, then the wife of the defendant, at the special instance and request of the said Josephine W. Peck, necessaries for her use, to wit, gowns and wraps of the value of $15,063.13. There is no allegation that the defendant’s wife in purchasing these articles acted as his agent or was authorized by him- to incur
None of the articles sold were of the kind used in the household of the defendant, such as food, or linen, or other articles which the master of a house supplies for the use of his household. The character of the articles appears, from the bill of particulars furnished by the plaintiff, to have been articles of dress and rather for personal adornment than for necessary clothing. The plaintiff offered no evidence to show that the defendant’s wife was not plentifully supplied with articles of this class by her husband, that he had ever refused to furnish her sufficient money to properly clothe herself, or that there was the slightest necessity for defendant’s wife to purchase these articles as necessaries upon the credit of the defendant. The question, therefore, is whether upon this proof the jury were justified in rendering a verdict in favor of the plaintiff and against the husband.
The question of the liability of the husband for articles of this kind furnished by a tradesman to a married woman was discussed in Wanamaker v. Weaver (176 N. Y. 75). The court cited, among other cases, Bloomingdale v. Brinckerhoff (2 Misc. Rep. 49), in which it was held that in order to entitle the tradesman to recover from the husband it was incumbent upon him to show that “the articles supplied to the wife were not only of the kind usually denominated necessaries, because their need is common to all persons, but that in consequence of the inadequacy of the husband’s provision they were actually required for the wife’s proper support, commensurate with his means, her wonted living as his spouse, and her station in the community.” The court also cited. Debenham v. Mellon (L. R. 5 Q. B. Div. 394), in which Bramwell, L. J., said: “The goods were necessaries in the
I, therefore, dissent from the reversal of this judgment.
Judgment reversed and new trial ordered, with costs to appellant to abide event.