Schwarting v. Bisland — 54 N.Y. St. Rep. 131

Majority

p. 131

Henrietta E. Schwarting, App'lt, v. Alfred Bisland, Resp’t.

(New York Common Pleas, General Term,

Filed August 9, 1893.)

Headnote

1. Husband and wife—Husband not liable fob moneys loaned to wife.

The rule that a husband may be charged with necessaries furnished to his wife does not apply to a case where money is loaned to the wife.

2. Same—Assumption of liability.

In the absence of proof that the husband knew of or assented to the loans, his assumption of responsibility for such supplies as should be furnished to his wife does not justify an interpretation that he assumed responsibilty for anything other than what he might reasonably expect that the tradesman would furnish in the ordinary course of his trade.

Appeal by plaintiff from a judgment of the district court in the city of New York for the tenth judicial district, rendered in plaintiff’s favor for the sum of twenty-five dollars and ninety-one cents and costs.

John M. Tierney, for app’lt; Alfred B. Cruikshank, for resp’t.

The action- was brought to recover the sum of $122.78 for goods sold and money loaned by plaintiff’s assignor to defendant through the medium of his wife as his alleged agent. The amount claimed for the goods sold was twenty-three dollars

p. 132

and forty-one cents, and the court below rendered judgment in favor of the plaintiff for the value of such goods, no recovery being had for the money loaned. From this judgment in her favor the plaintiff appeals to this court..

The only question for our determination is : does the plaintiff’s case as made out entitle her to a recovery against the defendant for money furnished to defendant’s wife by plaintiff’s assignor, a tradesman patronized by defendant?

In order that the recovery may be had against a husband for goods furnished to his wife the plaintiff must show that the goods so furnished were suitable to the wife’s position and necessary to her maintenance, and that she was not otherwise provided for. Arnold v. Allen, 9 Daly, 198 ; McQuhae v. Rey, 52 St. Rep., 484 ; Bloomingdale v. Brinckerhoff, 49 id., 142.

With regard to the money furnished the wife in this case, this burden was in no way successfully sustained by the plaintiff upon the trial. Moreover, the rule that a husband may be so charged does not apply to a case where money is loaned to the wife, Anderson v. Cullen, 8 N. Y. Supp., 643 ; 29 St. Rep., 494 .

There is no proof that the defend"nt knew of or assented to the loans for which recovery is sought, and, in the absence of such proof, his assumption of responsibility for such supplies as should be furnished to his wife does not justify the interpretation that he assumed responsibility for anything other than what he might have reasonably expected that the tradesman would furnish in the ordinary course of his trade.

The decision of the court below was in all respects correct.

Judgment affirmed, with costs. •

Giegerich, J., concurs.