Goodale v. Brocknor — 61 How. Pr. 451

Majority

p. 451

SUPREME COURT.

John H. Goodale, as superintendent of the poor of Orange county, agt. Washington Brocknor et al., as executors, &c., of Abraham Maze, deceased.

Headnote

Husband and wife—Liability of husbamd for necessac'ies furnished his wife who leaves him while insane— Superintendent of the poor cannot maintain ' action for.

Though a husband, whose wife leaves him while insane, would have been liable at common law to any one who should have supplied her with necessaries, or maintained her, yet an action oh such common law liability cannot be maintained by a superintendent of the poor.

At Circuit, August, 1881.

This action was tried before Mr. justice Cullen and a jury at Newburgh, on the eleventh day of last April, and the court directed the jury to find a verdict in favor of the plaintiff, upon the plaintiff’s counsel stipulating “ that if the court, on motion of defendants for a new trial, is of opinion that the court should have nonsuited or directed a judgment in defendant’s favor, the court may order such judgment in defendant’s favor, a new trial not to be had.” A motion for' a new trial was made on the twenty-third of April, and has just been decided in favor of the defendants. The facts sufficiently appear in the opinion.

Wadsworth, Mwrra/y & Cuddeback, for plaintiff,

Fdward F. Brown, for defendants.

I think that, upon the facts proved upon the trial and conceded by the defendants, the defendants’ testator was in default as to his conduct toward his wife, and would have been liable at common law to any one who should have

p. 452

supplied her with necessaries or maintained her. The wife being insane when she left her husband, such an act on her part was not a desertion of him, and the husband was bound to have taken care of her. The amount expended for her support by the plaintiff is conceded to be correct and to have been properly applied. But, as I understand the decision, the case of Norton agt. Rhodes (18 Barbour, 100) holds that an action on such common law liability cannot be maintained by a superintendent of the poor against a husband. The case is exactly in point, and as it has not been criticised or overruled I feel bound by its authority.

Verdict set aside and judgment ordered for defendants on stipulation.