126 N.Y.S. 932 | N.Y. App. Div. | 1910
The judgment re'sts upon an innkeeper’s charge for the keep of the wife of the defendant when she was living apart from her husband. Within a day or .two after the' coming of Mrs. Brokaw to the inn, her sister came also, whereupon a larger apartment was assigned to Mrs. Brokaw to accommodate the sister, who remained with Mrs. Brokaw throughout her stay of more than a month. The;
■ In' Keller v. 'Phillips (39 ÍL T. 354) the court say: “The husband is bound ,to provide for.' her * * . * ; whatever is necessary for their suitable clothing and maintenance,, according to his and their situation and condition in life.”' Conceding that the word .“-necessaries” is an elastic-term not confined to clothing to cover ■thé body and' to. food to sustain it;, that its -scojje. must be determined in. consideration of' the wife’s station in life, her .husband’s means and her situation, and even that it may include the reasonable and proper, requirements for the essential comfort'of the body and the mind (Conant v. Burnham, 133 Mass. 503), yet T am' of opinion that the charge in question should not.have been submitted to the. jury ;as one which" they might find was within that term. In Hamilton v. Lane (138 Mass. 359) the court say : “ It has always been held that those, articles were to be considered necessary which were suitable to thé degree and condition of life of the ' person to. whom-they were furnished, having regard to the estate of the infaqt or tbie husband ; and that it was not to be confined to - those - which were required to sustain life or'to preserve decency. "While in certain cases it-would be the duty of the-court'to direct-the jury authoritatively that'.the articles furnished could not. be necessaries, in others it would be for the jury to say whether they were such as ".could come within that class, and also to determine'whether in amount, quality, quantity and value they were suitable and proper in the'particular case. .(Raynes v. Bennett, 114 Mass. 424, and cases cited.)” I may add that as to the husband’s méans,'not ,bis actual fortune but" his usual style of living, may, as to third persons,afford the proper - criterion. I can conceive of a case where a wife living apart from her husband might be in such an'abnormal state of mind or body as would make' the. constant, presence of a near relative a necessity. Ór the social requirements might 'justify'
I think that the learned court should have submitted the question as to whom credit was given to the jury. As matter of fact, it appears that Mr. Brokaw was a stranger to the transaction. . The theory of the action is that Mrs. .Brokaw was constituted by law the agent of her husband, for the plaintiff alleges that the liability was incurred at the husband’s instance and request. (See Wanamaker v. Weaver, 176 N. Y. 75.) But the. question then before the court was not whether the wife should be held personally, but whether the merchant intended to extend credit to her personally or whether, he in effect made the contract with her as the agent of her husband. (Arnold v. Allen, 9 Daly, 198.) When Mrs. Brokaw came to the inn, the innkeeper, although he knew she was a married woman, could of course regard .her as one competent to contract for her shelter and food and become liable therefor. (Tiemeyer v. Turnquist, 85 N. Y. 516; Conlin v. Cantrell, 64 id. 217; Crisfield v. Banks, 24 Hun, 159; Muller v. Platt, 31 Hun, 121; Schouler Husband & Wife, § 109.) The, innkeeper knew Mrs. Brokaw personally, and had 'known her before her marriage. It does not appear what conversation was had between him and her at that time. The account upon the
The judgment and order are reversed and a new trial is granted, costs to abide the event.
Hirsohberg, P. J., Woodward, Burr and Rich, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.