
    FRANKLIN J. MINCK v. EDWARD MARTIN.
    
      Eusband and wife—Necessaries furnished wife, action against husband for, not barred by mere pendency of action for divorce, nor by that and the mere granting or refusing alimony.
    
    In the case at bar the action was for necessaries furnished the wife between July 15 and August 15, 1885, on the application of the wife but on the husband’s credit, the husband and wife during that period living separate and apart. It appeared on the trial of the action that on May 21, 1885, the wife commenced an action against her husband for separation and support, that a motion was made by the wife for alimony which was denied on July 24, 1885, and that the action was discontinued in January, 1886. There was also evidence given upon which the jury might have found that the defendant had forced his wife to leave his house and had thereafter refused to provide for her, although requested so to do, and that plaintiff had supplied her with the necessaries in question in good faith and in ignorance of the pendency of the action for a separation. The complaint was dismissed.
    
      Held, (1) that the dismissal of the complaint was error; (2) that the case of Gatlin v. Martin, 69 N. T. 393, was an exceptional case; and under the facts in the case at bar was not an authority in support of the dismissal of the complaint.
    Before Sedgwick, Ch. J., and Freedman, J.
    
      Decided December 30, 1886.
    Exceptions taken by the plaintiff ordered to be heard at general term in the first instance.
    
      Charles Putzel, attorney, and of counsel for plaintiff, on the considered in the :—
    I. The decision in Catlin v. Martin, 69 N. Y. 393, relied upon by the court and by the defendant herein, does not affect the case at bar.
    II. The necessaries were furnished by plaintiff to defendant’s wife after defendant refused to support her or to supply her with money or necessaries, and upon the credit of defendant. The sale took place after the wife was driven by defendant from his home, and after the denial by the court to grant her alimony.
    III. A husband who turns his wife, without cause, out of doors, sends with her a credit for necessaries (Bright, Husband and Wife, 9 ; Cromwell v. Benjamin, 41 Barb. 558; Johnstone v. Allen, 6 Abb. N. S. 306; Lord v. Thompson, 41 Super. Ct. 105 ; McGahay v. Williams, 12 Johns. 293 and 248 ; Blowers v. Sturtevant, 4 Den. 49).
    IY. While a divorce suit is pending, if no allowance is made to the wife, the husband is liable for necessaries furnished to her as though no litigation was in progress (2 Bishop, § 401; Keegan v. Smith, 5 B. & C. 375; Sykes v. Halstead, 1 Sand. 483 ; Dowe v. Smith, 11 Allen, 107 ; Johnston v. Allen, 39 How. 506 ; S. C. 6 Abb. N. S. 306; Lord v. Thompson, supra). If alimony is not allowed pending the proceedings, the husband is liable for necessaries furnished the wife while she is prosecuting the suit, although when the divorce was granted an allowance was made by the court to the wife for her support while the suit was pending, on the ground that the claim was against the husband and not the wife (Dowe v. Smith, 11 Allen, 107 ; Lord v. Thompson, supra).
    
    
      Blandy & Hatch, attorneys, and Charles Blandy, of counsel for defendant, argued :
    I. During the pendency of divorce proceedings the wife is presumed to be in the custody of the court, having cognizance of the divorce proceedings, and there is, during that period, no authority vested in her to charge her husband’s estate for the ordinary necessaries, and there is on the other hand no implied obligation on the part of the husband to pay for such necessaries. Her remedy is for alimony in the divorce suit (Catlin v. Martin, 69 N. Y. 393).
    H. The law in its wisdom makes abundant provisions for alimony in the divorce suit. If the circumstances are such that the wife should be awarded alimony, she gets it, and she must content herself with it. If, on the other hand, alimony is refused, it is because she is not entitled to it, presumably because she has no sufficient cause of action, in this case because the defendant had not abandoned her, but she him. That was an adjudication as between husband and wife, and the wife having contracted this debt afterwards, the inference was irresistible that she was endeavoring to circumvent the order of the divorce court, by making the husband pay indirectly what she failed to accomplish directly. The plaintiff stands in no better position than the wife, and she having abundant means of her own, he has a perfect remedy at law to recover this claim from her (Simmons v. Moore, 100 N. Y. 140).
   By the Court.—Freedman, J.

This action was brought to recover for necessaries furnished by the plaintiff to defendant’s wife. The evidence given at the trial would have authorized the jury to find that the articles furnished consisted of groceries and were necessaries; that they were furnished by the plaintiff on the wife’s application, but on the credit of the defendant, between July 15 and August 15, 1885, during which time the defendant and his wife lived separate and apart from each other and the defendant refused to provide for her; and that the defendant refused to pay, &c.

But it also appeared that on May 21, 1885, defendant’s wife commenced an action against the defendant for separation and support on the ground of abandonment ; that issue was joined in said action; that in it the wife made a motion for alimony during the pendency of the action; that said motion was denied on July 24, 1885; and that in January, 1886, the action Avas discontinued.

Upon these facts and the decision by the court of appeals of Catlin v. Martin (69 N. Y. 393), the trial judge directed a verdict in favor of the defendant and ordered plaintiff’s exceptions to be heard at general term in the first instance. The view taken was that during the pendency of the action for separation, no authority was vested in the wife to charge her husband’s estate for necessaries, and on the part of the husband no obligation would be implied to pay for such necessaries, and that her remedy was by motion for alimony.

This view and the disposition made of the case were erroneous. Catlin v. Martin was an exceptional case. The plaintiff was the mother-in-law of the defendant. She brought suit for alleged necessaries furnished by her to her daughter, the wife of the defendant. But it appeared that the defendant furnished and supplied necessary and suitable maintenance and support for his wife so long as she lived with him ; that he never neglected or refused such maintenance or support during the continuance of the marriage contract; that defendant’s wife voluntarily left him and lived with her mother who encouraged her in so doing and induced her to remain away from the defendant by offering to support and maintain her so long as she should continue to live with her. It was with reference to this state of facts that the defendant was held not liable, and that Allen, J., in delivering the opinion of the court of appeals, said, among other things, the following, viz. : “ After the commencement of the action for a divorce, there is no evidence that the defendant was called upon, or refused, to supply his wife with necessaries, and had the wife desired support pendente lite, her remedy was by application for alimony,.and there is no implied promise of the defendant to pay for necessaries furnished during that period. The board of the wife by the plaintiff during this time was but the continuance of the voluntary support furnished by her, as found by the referee.” And this was said in reference to the claim advanced by the plaintiff, that, although she might not be entitled to recover her full bill, she ought to be allowed to recover at least for the board of the wife during the pendency of the action for a divorce instituted by her, and for expenses incurred for medical attendance.

In the case at bar the facts are entirely different. At least there was evidence to the effect, and upon which the jury might have found that the defendant had forced his wife to leave his house and had thereafter refused to provide for her, although requested so to do ; and that the plaintiff had supplied her with necessaries in good faith and in ignorance of the pendency of the action for a separation.

In such a case a husband is liable for necessaries furnished to the wife even to one who was forbidden by him to trust her on his account, and such liability continues during the pendency of divorce proceedings at least up to the time of the actual payment of alimony (Lord v. Thompson, 41 Super. Ct. 115; Sykes v. Halstead, 1 Sandf. 483).

Plaintiff’s exceptions should be sustained, the verdict set aside, and a new trial ordered with costs to the plaintiff to abide the event.

I have so far treated the case as one coming before the general term upon a record which shows upon its face that plaintiff’s exceptions were ordered to be heard at general term in the first instance. But as the record also contains a notice of appeal from the order directing the verdict, and a notice of appeal from an order denying plaintiff’s motion for a new trial, and the said notices and orders contain several wrong recitals and references, from which possibly the inference may be drawn, although the fact does not appear, that the order originally made was afterwards vacated in so fa,r as it directed the hearing of plaintiff’s exceptions at general term in the first instance, if the fact should be that the said order was vacated to that extent, then the decision to be entered should be that the order denying plaintiff’s motion for a new trial should be reversed, the verdict set aside, and a new trial ordered with costs to appellant to abide the event.

Sedgwick, Ch. J., concurred.  