
    George Martin and John M. Martin, Respondents, v. Francis J. Oakes, Appellant.
    (Supreme Court, Appellate Term,
    December, 1903.)
    Husband and wife — Her agency for him a question of fact—To whom credit was given.
    The marital relation alone creates no presumption that a wife is agent for her husband.
    Whether she is such agent is in all cases a question of fact, arising either from his neglect to supply her with necessaries or from his authority expressly given or fairly inferrible from the circumstances.
    If the goods sold ,were furnished on her credit he is not liable for them although they were necessaries.
    Appeal from a judgment for the plaintiffs rendered upon a verdict in their favor by the City Court of the city of New York.
    Action to recover for goods alleged to have been sold and delivered to the defendant, the defense being a general denial.
    John K. Erskine, Jr. (John D. Kernan, of counsel), for appellant.
    Thompson and Maloney, (J. Campbell Thompson and Milton Dammann, of counsel), for respondents.
   Bischoff, J.

The action was to recover the sum of $154 for merchandise alleged to have been sold by the plaintiffs to the defendant, and the defense was a general denial. On the trial there was some evidence which tended to show that thirty-seven dollars’ worth of the goods were purchased by the defendant in person, but concededly the remainder was supplied to a coachman in the employ of the Mason Stable Company, upon the authority of the defendant’s wife, for use in the maintenance of an equipage which she had hired of the stable company with her husband’s knowledge and consent.

There was no pretense that the defendant had in any way expressly authorized or consented to the supply of the materials delivered to the coachman, nor is there any evidence which tended to show that the defendant had by any course of dealing or previous transaction with the plaintiffs clothed his wife with inferential authority to bind him by her purchases. The defendant’s liability was, therefore, sought to be predicated wholly of a supposed agency of the wife for her husband arising from the fact of the marital relation above, and to that effect was the trial justice’s charge to the jury, who returned a verdict for the plaintiffs.

That such is not the law, and that the' question of the wife’s agency for her husband is in every case one of fact, arising either from his neglect to supply her sufficiently with necessaries, or from his authority expressly given or fairly to be inferred from the circumstances, was recently clearly ruled by our court of last resort. Wanamaker v. Weaver, 176 N. Y. 75.

It may not be unfairly urged that since the defendant had indulged in an equipage for his wife he had impliedly consented also to the supply of materials reasonably necessary to its use and proper maintenance. But even so, the defendant had provided his wife with a weekly allowance of $150, for her personal expenses, and there was not a scintilla of evidence that this sum was not reasonably sufficient for every purpose. Until the husband’s neglect to supply his wife with necessaries appears, the constituent of the right to recover against him by one who supplies her without the husband’s assent, express or implied, is wanting. Wanamaker v. Weaver, supra.

The trial justice, however, instructed the jury in effect, that they were to constitute themselves the censors of the defendant’s liberality, and without anything to show his means, or his wonted manner of keeping his family, to speculate in this respect and to pronounce the defendant liable to the plaintiffs if they, the jury, opined that the defendants allowance to his wife fell short of what it ought to have been.

The repugnance of this to law and reason is apparent without argument. •

There was evidence which tended to show that the goods were supplied to the coachman upon the wife’s personal credit, and if such was found to have been the fact, the defendant was not liable, although the goods may have been necessaries. Tiemeyer v. Turnquist, 85 N. Y. 516; O’Connell v. Shera, 66 App. Div. 467; Ehrich v. Bucki, 7 Misc. Rep. 118.

Whether, or not, there was evidence which tended in the direction stated was a question of law to be determined by the court, and it was error, therefore, to permit the jury to i( say whether or not there was any such evidence in the case.”

The judgment should be reversed, and a new trial ordered with costs to the appellant, to abide the event.

Fbeedmait, P. J., and Bischofe, J., concur.

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