Majority
p. 17William J. McDermott, Respondent, v. William Johnston Books, Appellant. Supreme Court, Appellate Term, Second Department, April 24, 1926.
Headnote
Husband and wife • — ■ liability of husband for support — husband not liable where wife leaves without cause — action for necessaries — burden of proof on plaintiff.A husband is not liable for the support of his wife while she is living separate from him where she leaves him without cause. Third persons cannot compel the husband to pay for the necessaries purchased by the wife under such circumstances.
The burden of proof is upon any one seeking to hold tho husband for necessaries furnished to the wife to show that the separation was due to the fault of the husband.^
Appeal from a judgment of the Municipal Court, Brooklyn, First District, in an action for legal services rendered to defendant’s wife after separation.
Percy F. Griffin, for the appellant.
Respondent in person.
Judgment unanimously reversed upon the law, with thirty dollars costs to appellant, and complaint dismissed, with appropriate costs in the court below.
Where a wife has left her husband and is living apart from him without justification and he maintains a home where he is wEling to support her, he is not liable even for necessaries furnished to her. Where husband and wife are living together, the wife has implied authority to pledge his credit for necessaries. Where they are separated and living apart, she has no such authority and the burden is upon any one seeking to hold the. husband for necessaries furnished to the wife to show that the separation was due to the
p. 18
fault of the husband. (Constable v. Rosener, 82 App. Div. 155 ; affd., 178 N. Y. 587 ; Buxbaum v. Mason, 48 Misc. 396 ; Altman & Co. v. Durland, 185 App. Div. 114 ; Bostwick v. Brower, 22 Misc. 709 .)
Present, Cropsey, MacCrate and Lewis, JJ.
Cases cited
- Buxbaum v. Mason 48 Misc. 396 p. 18
- Bostwick v. Brower 22 Misc. 709 p. 18