
    Angela C. Quinlan, Respondent, v. John C. Westervelt, Appellant.
    (Supreme Court, Appellate Term,
    January, 1910.)
    Husband and wife — Rights, duties and liabilities of husband—Liability of husband for goods and necessaries furnished to wife — After separation.
    One who furnishes to a wife, with knowledge that she is living apart from her husband, necessaries suitable to her condition cannot maintain an action against the husband therefor where he pays her more than half his income in regular weekly payments; and the fact that he testifies that there were extras beside, and he had at times paid for dresses and other things purchased by her, is not sufficient from which to infer authority in her to purchase necessaries on her husband’s credit.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Hew York, borough of Manhattan, ninth district.
    Henry M. Stevenson, for appellant.
    McKenna & McKenna, for respondent.
   Giegerich, J.

Plaintiff sued the defendant for the agreed purchase price of goods sold by him to the defendant’s wife, which goods, it was conceded upon the trial, were necessaries suitable to the wife’s, condition in life. At the time of the sale the wife was living apart from her husband, which fact was known to the plaintiff, and he so avers in his complaint. The goods were sold to the wife in 1905, and the undisputed evidence shows that the husband’s net income during that year was $4,951 out of which he paid his wife during that time the sum of $2,533.28, the regular agreed upon payments of $40 each week having been made, and various sums at other times, in all aggregating said amount. Under such proof the husband cannot be he] d liable, nor is the fact that the husband testified that in addition to said weekly sum there were extras,” and that at times he had paid for dresses, etc., purchased by her, sufficient to support the theory of the plaintiff that there w^s authority conferred upon the wife to purchase necessaries upon the husband’s credit, or that the provision so made for her was inadequate or not commensurate with his means and her station in life. Nathan v. Morgenthau, 114 N. Y. Supp. 79-6.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

Dayton and Lehman, JJ., concur.

Judgment reversed, and new trial ordered.  