
    Scheive vs. Kaiser.
    The plaintiff made an arrangement with the defendant to support his wife, founded upon a valuable consideration. The agreement was evidenced by a bond, the condition of which contained recitals of the agreement and consideration, the latter being $350, “ to be used and appropriated ” by the obligor, for the benefit of the wife; and further agreeing “ to keep and maintain and forever support” such wife. Then followed the condition that the defendant should “from time to time use and apply the aforesaid money for the benefit and support and maintenance” of the wife, as the same should be necessary, and should keep and save the plaintiff forever harmless on account of the support and maintenance of his said wife, and should save and prevent the plaintiff from any liability for her support. The referee found that the defendant had failed to support and maintain the wife, and that she was justifiable in leaving as she did, and in refusing to return to, his house. In an action to foreclose a mortgage given to secure the performance of the condition of the bond; Held, that this was a clear finding of a breach of the agreement recited; and that the referee erred in deciding that there had been no breach of the covenants in the bond, and in dismissing the complaint.
    APPEAL, by the plaintiff, from a judgment entered upon the report and decision of a referee.
    The action was brought to foreclose a mortgage. The defendant Kaiser executed to the plaintiff a bond reciting that the plaintiff and his wife had entered into articles of separation from bed and board, and that in consideration of the premises the plaintiff had, that day, paid Kaiser $350, to be used and appropriated by him for Frances Scheive, (his wife,) and in consideration of the premises Kaiser further agreed to keep and maintain and forever support the said Frances Scheive. It was conditioned, in the bond, that Kaiser should from time to time use and apply the money, (the $350,) for the benefit and support and maintenance of said Frances, as the same should be necessary, and should keep and save the plaintiff forever harmless on account of the support and maintenance of said Frances Scheive, and should save and prevent the plaintiff from any liability for the support and maintenance of said Frances, without fraud, &c.
    
      The defendant executed, at the same time, a mortgage to secure the performance of the condition of the bond, containing the same condition.
    The defendant took the plaintiff’s wife to his house, and supported her about four months. The defendant and his family treated Mrs. Scheive in a manner justifying her leaving them, and she did leave; and thereupon the overseers of the poor of Dunkirk took her in charge as a pauper, and expended for her support about the sum of $150. The superintendent of the poor then saw the plaintiff and applied to him to pay the sum expended, and he agreed to do so, as soon as he could enforce the collection of the amount out of the bond and mortgage; or as soon as he got the money. Previous to the commencement of the action, the plaintiff demanded of the defendant the $350, less the value of the board and expenses incurred for Prances during the time she was supported by the defendant. The defendant refused to pay.
    The referee found that Mrs. Scheive was in good health, and performed daily labor, except for two weeks, while she was supported by the overseer.
    As conclusions of law, the referee found; that at the time the plaintiff made his promise to the superintendent of the poor, to pay for the board, &c. there was no legal liability on' his part to pay the same. That there had not been any breach, in the covenant “to save and prevent the plaintiff from any liability for the support and maintenance of the said Prances,” as in said bond mentioned and set forth; and that there had been no breach of any covenant in the bond; and he directed judgment for the defendant. The plaintiff filed exceptions, and appealed to the general term. .
    
      N. H. Hill, for the plaintiff.
    
      W. W. Holt, for the defendant.
   By the Court, Marvin, J.

It was said, upon the argument, that Norton v. Rhodes, (18 Barb. 100,) was controlling with the referee, in this ease. If so, I think the referee misapprehended or misapplied that case. Horton and others, as superintendents of the poor, brought that action against the husband to recover for the hoarding, &c. of his wife by the county. The action was attempted to be sustained upon the common law relating to husband and wife. It was held that the superintendents of the poor could not, as public officers of the county, interpose between husband and wife, and by supporting the latter, entitle themselves as such officers, to maintain an action against the husband. It was said in the opinion that if an individual sees fit to furnish necessaries to a wife, and resort by action to the husband, for compensation, upon the ground of ill usage, &c. he may undoubtedly do so, and a court will hear the proofs and allegations of the parties and decide in accordance with the well settled principles of the common law. It might be decided that the husband was not in fault; and if so, then the plaintiff would not recover.

In the present case the plaintiff made an arrangement with the defendant to support his wife, founded upon a valuable consideration. The agreement is evidenced by a bond, the condition of which contains recitals of the agreement and consideration, the latter being $350, “to be used and appropriated by him, (the obligor,) for the benefit of said Frances Scheive,” and further agreeing “to keep and maintain and forever support the said Frances Scheive.” Then follows the condition “that the said Kaiser shall, from time to time, use and apply the aforesaid money for the benefit and support and maintenance of said Frances Scheive, as the same shall be necessary, and shall keep and save said Frederick Scheive forever harmless, on account of the support and maintenance of said wife, said Frances Scheve, and shall save and prevent said Frederick from any liability for the support and maintenance of said Frances.” The referee has found that the defendant has failed to support and maintain Frances, and finds that she was justifiable' in departing from the defendant’s house; and that she was justified in refusing to return to his house. Here is a clear finding of a breach of the agreement recited. The referee seems to have confined his inquiry to the conditions in the bond to keep the plaintiff harmless and to save and prevent him from any liability for the support, &c. of Frances, and coming to the ■ conclusion that the plaintiff was not liable to the overseers of the poor, or the superintendent, notwithstanding his conditional promise to pay, he decided that there had been no breach of the covenants of the defendant to the plaintiff, in the bond. In this I think he erred. . The recital, in the condition of the Tpond, contains an express agreement by Kaiser to keep and maintain and forever support the said Frances Scheive.” This agreement or covenant was broken. But it is said that this covenant is only to be found as one of the'recitals in the condition of the bond, and that the real conditions are those following, relating to the application of the $350 for the benefit and support &c. of Frances, and to keep harmless, &c.; and that the obligation could only be enforced in case of a breach of the conditions thus specified ; that it could not be enforced for a breach of the covenant * to keep and maintain and forever support.” I am inclined to think this would be too narrow a construction. It seems, on consulting the complaint, that the pleader has only noticed the conditions following the recitals, and has omitted to notice the covenant “ to keep and maintain and forever support.” The reference to the bond, in the complaint, is • quite general. It does not notice all the provisions in it. The bond was put in evidence, and I think, putting a liberal construction upon the complaint, its allegations are broad enough to enable the plaintiff to avail himself of all its provisions. But apply the strictest rules to the pleadings, and regard the mortgage as only given “to- secure the payment of the principal and interest mentioned in the condition of said bond, to the use, benefit and maintenance of said Frances Scheive,” as alleged in the complaint, and there was a clear breach of the condition proved. There is no pretense that the defendant “ from time to time used and applied the $350 for the benefit, support and maintenance of Frances Scheive as the same should be necessary.” The cause of action was established, and the referee .erred in dismissing the complaint.

[Erie General Term,

November 16, 1868.

There is no foundation for the objection that the action was improperly brought by the plaintiff and in his name.

The judgment must be reversed, and there must be a new trial, and the question of costs is reserved to the final trial.

Daniels, Marvin and Darker, Justices.  