Majority
p. 630CHARLES M. DECKER & BROS. v. MOYER. (Supreme Court, Appellate Term. March 10, 1910.)
Headnote
Hu-sband and Wife (§ 19[1] )—Abandonment—Action fob Necessaries—Proof Required.Under a law that a husband is liable for necessaries furnished his wife when they are living apart, when the separation is due to his fault, or where, the separation being by agreement, the wife is without means of her own, in an action for necessaries furnished a wife living apart from her husband, it must not only be shown that the husband was not furnishing the wife with money, but also that she had no separate estate, and that the husband was not justified in leaving her.
[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 121- . 138; Dec. Dig. § 19.*]
Appeal from Municipal Court, Borough of Manhattan, Ninth District.
p. 631Argued before SEABURY, LEHMAN, and BIJUR, JJ.
Action by Charles M. Decker & Bros, against Albert Moyer. Judgment for plaintiffs, and defendant appeals.
Reversed, and new trial ordered.
Scott, Upson & Ford, for appellant.
Abraham G. Lampke, for respondents.
Upon uncontradicted testimony it was shown that it is the law in New Jersey that a husband is not liable for necessaries supplied to his wife when they are living apart, except in cases where the separation is due to his fault, or where, the separation being by agreement, the wife is without means of her own. Though the plaintiff showed that the husband was not furnishing the wife with money, he did not prove that she had no separate estate, nor that the husband was not justified in leaving her.
Judgment should be reversed, and new trial ordered, with costs to appellant to abide the event. All concur.