
    Alice De Brauwere, Respondent, v. Louis De Brauwere, Appellant.
    First Department,
    May 19, 1911.
    Husband and wife—liability for money advanced to wife for necessaries — action by wife to recover for necessaries purchased with her separate estate.
    At common law a wife "could not borrow money for necessaries so as to bind her husband; but in equity a person supplying money to the use of the wife for necessaries furnished to her can recover from the husband. Under the Married Woman’s Acts of this State a wife who, after her husband has abandoned her and her children and has failed to support them, expends money earned by her and which, by virtue of the statute, is part of her separate estate, for the purchase of necessaries, can recover the sum expended from the husband. Especially is this so where the husband having been arrested on the charge of abandonment has been ordered to pay his wife a certain sum weekly.
    Appeal by the defendant, Louis De Brauwere, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of December, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the amended complaint.
    
      Lucius L. Gilbert, for the appellant.
    
      Thomas F. Doyle, for the respondent.
   Ingraham, P. J.:

The facts'as alleged in the complaint upon which the plaintiff demands relief are as follows: Plaintiff and defendant were married prior to September 1, 1904. There were three children of the marriage, who on that date were all infants, the eldest becoming of age on the 12th day of December, 1906, and the second becoming of age on the 25th day of December, .1909, and the third is still a minor. On or about the 1st of September, 1904, defendant without cause abandoned the plaintiff and their said children, who were then infants, and left them without any means of support, and has at no time since contributed anything towards their support except the sum of fifty dollars. Prior to September 1, 1904, plaintiff caused defendant to be arrested On the charge of abandonment and defendant was ordered to pay the plaintiff six dollars weekly, which defendant refused to do and removed from this State to the State of New Jersey. Thereupon the plaintiff, in order to provide the necessaries of life for herself and her children, was obliged to and did work as a seamstress and janitress and at other labor, and the money which she obtained thereby and a small inheritance which she received, amounting to the sum of $3,840, the plaintiff'expended in furnishing board, maintenance, clothing and other necessaries for herself and her three infant children to the damage of her separate estate in the sum of $3,840, and that the said board, maintenance, clothing and other necessaries so furnished by said plaintiff were necessary' and were of the reasonable value of that sum. Plaintiff was unable tó procure necessaries for herself and children upon the credit of the defendant, as defendant had no financial credit upon which plaintiff could procure such necessaries, and plaintiff asks to recover that sum from the defendant.

It is well established that, although at common law a wife could not borrow money for necessaries so as to bind the hus- ■ band,- yet in equity a person supplying money to the use of the wife for necessaries furnished to her would stand in the place of the person who found and provided such necessaries for the . wife, and as the persons furnishing the necessaries for the wife would be creditors of the husband, so a person lending the 'money to be paid to the persons furnishing such necessaries stood in their place and was a creditor of the husband also. (Harris v. Lee, 1 P. Wms. 482.) In Jenner v. Morris (3 DeG., F. & J. 45) this case was approved as stating the law of England. Lord Campbell, L. Oh., said: “Nevertheless, it has been laid down from ancient times that a court of equity will allow the party who has advanced the money which was proved to have been actually employed in payment for necessities furnished to the deserted wife to stand in the shoes of the tradespeople who furnished the necessaries and to have a remedy for the amount against the husband.”

It follows that, as the husband was under the legal obligation to furnish necessaries for his wife and infant children (see Van Valkinburgh v. Watson, 13 Johns. 480), a third person advancing money to furnish such necessaries “stands in the shoes of the tradespeople who furnished the necessaries and has a remedy for the amount against the husband.”

The question presented in this case is, when the husband deserts the wife and there is a legal adjudication requiring the husband to furnish the wife a sum of money for the support of herself and the infant children, and the wife from her separate estate furnishes the money necessary for the purchase of the necessaries, whether the wife will have a cause of action against the husband.

Undoubtedly at common law this action could not be maintained, because the personal property of the wife and her earnings belonged to the husband. But this rule has been changed in this State by a series of enactments that were finally revised and re-enacted in the former Domestic Relations Law (Gen. Laws, chap. 48; Laws of 1896, chap. 272). Section 20 of the former Domestic Belations Law provided that property, real or personal, owned by a married woman, or thereafter owned by a woman at the time of her marriage, or acquired by her, should continue to he her sole and separate property as if she were unmarried, and should not be subject to her husband’s control or disposal or liable for his debts. Section 21 thereof provided that a married woman has all the rights in respect to property, real or personal, and the acquisition, use, enjoyment and disposition thereof, and to make contracts in respect thereto with any person, including her husband, and to carry on any business, trade or occupation, and to exercise all powers and enjoy all rights in respect thereto and in respect to her contracts, and be liable on such contracts, as if she were unmarried; but that a husband and wife cannot contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife. Section 27 thereof provided that a married woman has a right of action for an injury to her person, property or character or for an injury arising out of the marital relation, as if unmarried. Section 450 of the Code of Civil Procedure (as amd. by Laws of 1890, chap. 248) provided that all sums that might be recovered in actions or special proceedings by a married woman to recover damages to her person, estate or character should be the separate property of the wife. And section 30 of the former Domestic Relations Law, as added by chapter 289 of the Laws of 1902, and amended by chapter 495.of'the Law’s of 1905, provided that a married woman should have a cause of action in her own sole a,nd separate right for all wages, salary, profits, com.pensation or other remuneration, for which she may render work, ' labor or services, or which may be derived from any trade, business or occupation carried on by her, and her husband should have no right of action therefor, and that the presumption of law in all such cases should be that such married woman was alone entitled to any wages, salary, profits, compensation or other remuneration for services; rendered by her. And these provisions were subsequently re-enacted in the present Domestic Relations Law (Consol. Laws, chap. 14; Laws of 1909, chap. 19) as sections 50, 51, 57 and 60.

The husband thus being under a legal obligation to support his wife and infant children, and having deserted them without providing for their support, he is liable for necessaries furnished for that purpose.- In equity he would be hable to any one advancing the money necessary to pay the persons who had furnished such necessaries. The wages or - compensation paid to the wife for services which she had rendered being her separate estate and belonging to her, I cannot see that she is in any different position from any other person who had advanced money to perform the obligation of the husband for the support and maintenance of his wife and' infant children, especially after that obligation had been judicially determined by an order requiring the defendant to furnish- six dollars a week for the maintenance of his wife and infant children. The plaintiff has devoted her own separate estate to the performance of the obligation which was assumed by the husband upon his marriage, and his liability to perform that obligation having been fixed by the order of a court of competent jurisdiction, I can see no reason why the defendant should not be hable to her for the amount thus expended.

The learned justice at the Special Term has reviewed the authorities on this subject (69 Misc. Rep. 472), and it is" not necessaiy to répeat what he has said. But for the reasons here stated and those stated by him, the judgment appealed from must be affirmed, with costs, with leave to the defendant to withdraw the demurrer and to answer within twenty days upon payment of costs in this court and in the court below.

McLaughlin, Scott, Miller and Dowling, JJ., concurred.

Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs in this court and in the court below.  