
    PARKER v. TILLINGHAST.
    
      N. Y. City Court, General Term ;
    
      May, 1887.
    1. Parent’s liability to person furnishing child necessary clothing.] Where a parent sends his boy away from home to attend school in a distant place, and fails to supply him with clothing suitable to the climate, and required by the boy’s growth, he is liable to a person furnishing such necessaries to the boy upon the parent’s credit.
    2. What are necessaries, question of fact.] Where the standard of paternal duty is a shifting one, depending upon circumstances and on inferences about which intelligent persons may honestly differ, the question of necessity should be left to the jury.
    Appeal from a judgment entered upon a verdict for the defendant rendered by the direction of the court.
    The defendant, a resident of the city of New York, sent . his son, then sixteen years of age, to attend school, at Exeter, New Hampshire. While there the son, in November, 1885, obtained from the plaintiff winter clothing, including an overcoat. The clothing was reasonably worth $80. The ■ plaintiff testified without objection, that at the time of ordering the clothing it was cold weather, and the defendant’s son said “he had nothing but a very thin overcoat, and that ho had outgrown his other clothes.” The defendant testified that he could not state what clothes his son had when he left home that fall, but in general terms said, that he had furnished the son what clothing he thought was proper and necessary for him.
    The trial judge directed a verdict in favor of the defendant, and from the judgment entered thereon, the plaintiff appeals.
    
      Robert L. Stanton, for appellant.
    
      
      Logan & Melliss, for the respondent.
   McAdam, Ch. J.

We must assume that the clothing furnished by the plaintiff was reasonable and proper, according to the defendant’s condition in life, or otherwise the judgment must be reversed for error of the trial judge, in refusing to permit the plaintiff to prove the defendant’s financial condition, a fact the plaintiff proposed to establish while the defendant was on the witness stand. The only question to be considered, therefore, is the defendant’s liability, which springs from the relation of the parent to his offspring, and is founded on a natural duty to furnish necessaries for his infant children according to his means.

If the child be living with the parent, neglect will not be presumed, and “ no man shall take upon him to dictate to a parent what clothing the child shall wear, at what time they shall be purchased, or of whom. All that must be left to the discretion of the father or mother ” (Bainbridge v. Pickering, 2 H. Bl. 1325 ; Van Valkinburgh v. Watson, 13 Johns. 480). The defendant’s son was living apart*from the defendant by the latter’s act, and we are to consider how far this affects the defendant, for what is actually necessary for an infant will depend upon his situation at the time.

In Baker v. Keen (2 Stark. 501) the father had placed his son at a military college, and paid his expenses there, and this was considered sufficient to warrant the presumption of authority from the father to order regimentals and other articles for his equipment. The son in the present case was placed in the school at Exeter. He was expected to pursue a course of studies there, and if, as the son said, he had nothing but a thin overcoat, and had outgrown his other clothing, the father ought to have supplied what the son needed, as the son could not be expected, under the circumstances, to supply them at 1ns own expense. The cold winds of New Hampshire, where the father located his son, entitled him to clothing suitable to the climate, and his gradual growth called for clothing suited to his increased size, so as to permit him to make a presentable appearance at his school, and if the father failed to supply these necessaries, the son had the right to procure them on the father’s credit. This is founded on the rule that if the parent neglects his duty, any other person who supplies the necessaries is deemed to have conferred a benefit on the delinquent parent, for which the law raises an implied promise to pay on the part of the parent. The evidence was sufficient to entitle the plaintiff to go to the jury on the questions involved (2 Kent Com. 13 ed., 193; Baker v. Keen, supra ; Mahoney v. Evans, 51 Pa. St. 83; Davis v. Caldwell, 12 Cush. 513).

When the standard of paternal duty is a shifting one, depending upon circumstances and on inferences about which intelligent persons may honestly differ, it is a question which should be determined by the jury. We think the trial judge erred in assuming, as matter of law, that, on the facts stated and the inferences to be drawn from them, no liability could possibly attach. The defendant’s testimony was unsatisfactory as to what clothing he had furnished his son, and was silent as to whether or not he furnished a winter overcoat, which the nature of the climate and time of the year would indicate the son needed. He was also silent as to what pecuniary provision (if any) he made for his son while at Exeter. These things may he more satisfactorily explained on the new trial.

Upon the record as it stands, we'think the judgment ought to be reversed and a new trial ordered, with costs to the appellant to abide the event.

Hyatt and Ehrlich, JJ ., concurred.  