Bloomingdale v. Brinckerhoff — 49 N.Y. St. Rep. 142

Majority

p. 142

Lyman G. Bloomingdale et al., App’lts, v. Daniel D. Brinckerhoff, Resp’t.

(New York Common Pleas, General Term,

Filed December 5, 1892.)

Headnote

Husband and wife—Liability of husband for necessaries supplied to wife.

Where a husband and wife are living apart, the husband paying a regular allowance to the wife, to render the husband liable for goods furnished to her, it must be shown not only that the articles furnished were necessaries in the ordinary sense, but also 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 wife and her station in the community.

Appeal from a judgment for defendant, rendered in the district court in the city of New York for the seventh judicial district.

Action to recover for necessaries alleged to have been supplied to defendant’s wife upon his credit.

Samuel D. Levy, for app’lt; Ezekiel Fixman, for resp’t.

Careful scrutiny of the evidence shows that defendant was sought to be held liable in this action upon his wife’s alleged implied authority to pledge her husband’s credit for necessaries supplied to her at her request.

p. 143

For the defendant, however, it appeared without contradiction that for nearly two years before the alleged necessaries were supplied husband and wife were living in a state of voluntary separation, and that during all this time the husband had regularly paid his wife a weekly allowance of fifty dollars for her separate maintenance and support.

' That, irrespective of whether or not the person who supplies the wife with necessaries had knowledge at the time of the husband’s provision for her support, the presumption of the wife’s authority to pledge her husband’s credit is negatived by the fact of their living apart, and that the tradesman who supplies her under such circumstances upon the credit of her husband and without his express sanction or approval does so at his own peril, are propositions too well established by authority to admit of further dispute. See the rule stated and the cases collated in Hare & Wallace’s notes to Manby v. Scott. Montague v. Benedict, and Seaton v. Benedict, reported in Smith’s Leading Cases, 436, etc.; Tyler on Infancy & Coverture, § 221; Schouler's Husband & Wife, § 117; Baker v. Barney, 8 Johns., 72 ; Lockwood v. Thomas, 12 id., 248.

It was incumbent upon plaintiffs, therefore, to proceed still further and show that the articles supplied to the wife were not oidy 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. Schouler’s Husband & Wife, § 103; Keller v. Phillips, 39 N. Y., 351 ; Arnold v. Allen, 9 Daly, 198 ; Blowers v. Sturtevant. 4 Denio, 46 . This, however, the evidence wholly failed to establish.

Daubney v. Hughes, 60 N. Y., 187 , seemingly cited bv appellant’s counsel in support of his contention of defendant’s liability, has no application to the question here involved. In the case cited the husband was adjudged liable for his wife’s support upon his express promise, notice of the revocation of which was not brought to the promisee’s knowledge.

Judgment affirmed, with costs.

Giegerich, J., concurs.