
    Franklin J. Minck, Appl’t, v. Edward Martin, Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed December 30, 1886.)
    
    Husband and wife—Husband’s liability for necessaries furnished the wife—Effect of the pendency of divorce proceedings.
    Where the defendant had forced his wife to leave his house and had thereafter refused to provide for her, although requested so to do, and the plaintiff had supplied her with necessaries in good faith in ignorance of the pendency of an action for separation, the 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 the alimony.
    This is a case where the plaintiff’s exceptions were ordered to be heard at general term in the first instance. The record also contains a notice óf appeal from the order •directing the verdict and from an order denying plaintiff’s motion for a new trial.
    
      Charles Putzel, for app’lt; Charles Blandy, for resp’t.
   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, etc. 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 was discontinued. Upon these facts and the ■decision of the court of appeals in 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. The 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 supphed 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 would 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 the 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 supphed her with necessaries in good faith and in ignorance of the pendency of the action for a separation.

On 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 Supr. Ct. R., 315; 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 order 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 far 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., concurs.  